' ■ 4i CHAPTER - VIII

CONCLUSION & SUGGESTIONS

Right to life and personal liberty is the fundamental of

our fundamental rights. This right is enshrined in Article 21 of
our Constitution. It can become living reality if the State organs
attach importance to the liberty and freedom of the people. The
concept cf liberty is deep-rooted in history. It means to do what
one desires, hut it should be subject to the desire of others. If
it is not so, there may be chaos and disorder in the society. Thus
the importance of individual liberty and social control are comple­
mentary and supplementary to each other.

Article 21 of our Constitution reads itself *

"No person shall be deprived of his life or

personal liberty except according to the
procedure established by lav;".

In the very beginning the words ‘life1,2 'liberty* and

'procedure established by law' were given narrow interpretation by
the judiciary.1 Liberty was interpreted not to include all other

attributes of liberty as it was qualified by the word 'personal'.

o
The 'Gopalan' was so dominant that the Supreme Court in re-Sant Ranf"
refused to include the right to livelihood in the right to life.
The law in Gopalan meant any enacted law, may be harsh to any
extent even in the absaice of natural justice. That was why Justice
Das remarked that cook of Bishop of Rochester be boiled to death

1. A.K. Gopalan, v. State of Madras, AIR 1950 SC 27.

2. AIR 1962, SC 932.
 - 696 -
- It |!

•>: would be valid lav/ wider Article 2The principle of" , '*

natural justice and fairness with which the minority wanted to

decorate “law” and “procedure" was dropped by majority in Gopalan.

The majority view is not acceptable. The judiciary is duty bound

to protect people from impact of harsh legislation and roust prove

itself the real custodian of law.

However, Lakh ah Pal^ showed a slight change in the judicial.

5
approach. Anwar Ali Sarkar interpreted lav/ as state made law and

held that it must be valid. Gopalan interpretation of “procedure

established by lav/" was followed in •B.Bbrahim Hajee and Ram

• 7
Chander Prasad. ’

During emergencies in 1962 and 1971, the right to move to

the court for the enforcement of fundamental rights guaranteed

under article 14, 21 and 22 of the Constitution were suspended by

Q
the ^resident. In Kharak Singh , the court liberated personal

liberty from the clutches of narrow meaning given in Gopalan and

it was interpreted as freedom of individual. from such restrictions

which obstructed the development of one1 s personality.

Again in Mohan Chaudhary3

784and
* 10
* in Match an Singh the court

3. Supra note 1.

4. ' Lakhan Pal v. Union of India, AIR 1958, SC 163»

5* State of West Bengal v.. Anwar Ali Sarkar, AIR 1952, SC 75.

6* Collector of Malabar v. H.Sbrahim Hajee, AIR 1957, SC 688,

7. Ram Chander Prasad v. State of Bihar, AIR 1961, SC 1624.

8. Kharak Singh v. State of U.P.» AIR 1963, SC 1295.

9* Mo hen Chaudhary v. Chief Commissioner, Tripura, AIR 1964, SC 173.

10. Match an Singh v. State of Punjab, AIR 1964, SC 581

 as*
697 -

followed the restrictive approach of personal liberty and asserted

that during the emergency when under Constitutional provision the
right to move the Court for enforcement of Article 14, 21 and 22 was
suspended, the governments abide by that and detained person loses
11
the locus stahdi to move the court. The court in K.Ananda Namblar,
Ram Manohar Lohia,12 .Mohd. Yusuf1^ took healthy view regarding concept

of personal liberty and held that the detention could also be challan-
-ged on the ground of malafide of the executive other than the ground
based on Article 14, 21 and 22*

The court recognised and extaided the protection of Article

to pass-port cases in Pandurang1 and Satwant Singh ^ respectively.
To preserve the lofty ideal of "one world and one government", the
majority in pass port case held that travelling abroad was an
attribute of "personal liberty" and it is the need of the society.

The highest court in Covind^ accepted the nexus between the

right to privacy, human, dignity, happiness and need to safe guard

privacy from the subtle and sophisticated devices through which
police could hear in the street the whispers in closet, but hesitated
to cross the Rubicon to hold that there was a right to privacy.^

11. K.Ananda Nambiar v. Chief Secretary, AIR 1966, SC 657.

12. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.
13. Mohd.Yusuf v. State of AIR 1968 SC 765.
14. State of Maharashtra v. Prabhakar Pandurang Sanzglri, AIR 1966
SC ”424.
15. Satwant Singh v. A.P.Q. New Delhi. AIR 1967, SC 1836.
16. Govind v. State of M.P.. AIR 1975, SC 1378
17. Ibid.
 — 698

It is hoped that the court should interpret the provisions liberally

otherwise there may be danger to individual dignity and happiness
from other organs of the state.

In these cases the court was of the view that it was the
legislature only which could prescribe procedure for regulating
'life and personal liberty*. Thus every executive action, may be
reasonable or unreasonable was valid if it had legislative sanction
without testing the procedure on the touch stone of justness, fair­
ness and reasonableness.

The only armoury available to the judiciary is the armoury

of lav/. But the weapons can be used, misused, abused and allowed
to rust. It all depends on the judge who handles them. ^ This

conception proved to be a living reality when in proclamation of

emergency under Article 352(l) on 25o»75« Article 14, 21 and 22
19
were suspended and the habeas corpus case ^ depicted true picture
of the Supreme court at the time when many persons were detained
under Maintenance of Internal Security Act, 1971. During this
period the court instead of eliminating darkness, made it complete
darkness by holding in Sin&la that to issue writ of habeas corpus
is to enforce fundamental rights which are suspended by the Presi­
dential order under Article 359(l). Thus the faith in judiciary
got a tremendous set back. The majority in this case did not allow
the protection of right to life and personal liberty because it

18. See Hari'Swarup, Por When the law is made. (19S>, 5.

c.f. Jaswal Mlshtha. Jtole of the Supreme Court with re star d to
±lie Right to hire ana Personal Liberty. CAshlah Publishing
House, 8/81, Panjabi Bagh, New Delhi, 1990>,. 404.
19. A.D.M. Jabalpur v. S« Shikla. AIR 1976, 1507.
 - 699

found Article 21 to be the sole repository of the right to "life11

and “personal liberty". But justice Khanna in his dissenting
opinion did not consider Article 21 as sole repository of "life"
and “liberty".

It is surprising and shocking that while interpreting the

expression "procedure established by law" no principle of natural
justice and rule of law was thought of. But the Court held that
procedure established by law meant procedure laid down by enacte-d
law. The court instead of performing its role as crusader ana
protector of life and liberty of the people, let loose the
executive to act arbitrarily. Sisukla made Gopalan1 s shadow more
nr\
darker and the consequence was Bhanudas, another creation of
slumbering judiciary and the government. Think of the extremity,
that if a detenue was shot or starved to death, there was no
remedy till the emergency was over. The judges did not evsi cure
to look at the legality of the specific conditions of detention,
not to talk of giving relief to the people whose liberty was
crushed under the dominating feet of the executive. The relief
given by the High courts was also snatched away.
21
After many ups and downs, now it has been accepted
v after amendment) that Article 21 could not be suspended even
during emergency.
The martyrdom of Oopalan and resurrection by Cooper ^
paved the way for Maneka Gandhi^ which proved to be panacea for

20. Union of India v. Bhanudas. AIR 197? SC 1027,

21. 63 Constitution (Amendment) Act, 1989.
22. Cooper v. Union of Indift. AIR 1970, SC 564.
23 • Maneka Gandhi v. Union of India. AIR 1978, SC 597,
 700

"life" and “personal liberty" by prescribing fair procedure.

But Maneka only freed "procedure" from Gopalan and kept

Go pel an on "law" intact. Only executive action is subject to
Article 21 and not the legislature. In Maneka. Justice Bhagwati
hoped that if "the lav/ was unreasonable lav/, the arms of the
court were long enough to reach it and strike it down. The
dreadful experience of emergency laws shows that the arms of
Parliament are longer than that of court. Even, after Maneka
Article 21 can not prohibit enactment of such laws.

Since long we have been noticing fluctuations in Judicial

decisions. Hpakat^ and Sunil Batra (i) & (ii) ^ adopted both the.
oc
substantive as well as procedural due process. Hus sain ar a,
?7 po
Francis Coralie Mullin ' and Bachan Singh voted for only pro­
cedural fairness. Justice Bhagwati while delivering minority
OQ
view in Bachan Singh ? changed his view from what was held by him
in Man ok a. Hus sa Inara. Francis C. MuLliri and held that "law" as
well c.s "procedure" under the "procedure established by law"
should be just, fair and reasonable. But A.K. Roy^° did not
accept due process as part of Article 21. The Supreme Court in
Olga Tellla?1 was ready to strike down the "law" which prescribed

24. See in^ra Note 7P. F- M

25« Sunil Batra (i) v. Delhi Administration, AIR. 1978, SC 1675.
"Suhil "Batra (li)v, T3 elhi A5m ini strut ion, AIR 1980, SC 1580.
MussaiBa^a knatocm v. State of Bihar, AIR 1979. SC 1360:
T569, 157771^19. -----------
27. Francis C. Mull in v. U.T. Delhi. AIR 1981, SC ?A6.
28. 8cic/ax y, Punjo.
29- Bachan Singh v. State of Panjab. AIR 1982, SC 1325*
7°. A.K. Roya v. Union of India. AIR 1982, SC 710.
Qlga Tell is v. Bombay Municipal Corporation, AIR 1986 SC 180.
 - 701 -

unreasonable procedure. Thus indirectly and impliedly the court

expressed its willingness that “law" as well as "procedure" both
should be just, fair and reasonable.

The requirement is that both "procedure" as well 'law*

under Article 21 should be interpreted as fair, just and reason­
able. This revolution will be complete when American due process
will be followed by Indian judiciary, openly and liberally.
Forgotten are not the days when in U. S.A., the Slaughter House
Cases? ^ did not allow the substantive "due process". In India

Go pal an totally discarded "due process" from Article 21. The

position reversed, the minority opinion in Slaughter House (in
U. S.A.) and in Go pal an (in India) became majority opinion in
Smyth and in Maneka respectively.

According to Article 21, the right to life (as expounded

above) can not be taken away by the State except according to the
procedure established by lav/. The scope of expression "procedure
established by law" has undergone a change at the hands of the
Supreme Court in Maneka Gandhi case. After this case, procedure
embodied in any law seeking to deprive an individual of his life
or personal liberty must be just, fair and reasonable. In other
words, Article 21 embodies the American "due process claused with

all its implications to the State.

32. (1873) 16 Wei. 36.

33. A.K. Go pal an v. State of Madras. AIR 1950, SC 27.
34. Smyth v. Ames (1898) 169 US 466.
35. Maneka Gandhi v. Union of India. AIR 1978 SC 597.
36. Sunil Batra v. Delhi Administration. AIR 1978 SC 1675.
 - 702 -

Despite the Court's efforts to make the right to life more

meaningful, the right has remained and would remain in future a
distant mirage, Why is this so ? The main reason for this lies
in the fact that the judicial strategy followed for the enforcement
37
of the right is not and can not be effective,

In Mithu, 3a the Supreme Court declared Section 303 of Indian

Penal Code unconstitutional, it being unfair and unreasonable as
it prescribed death sentence as the only sentence for the offence
of murder committed by the lifer undergoing the sentence, It is
clear that in this case the Supreme Court adopted substantive due
process.

After emergency the Supreme Court appeared on Judicial

scene with more confidence and developed new concept of Public
interest litigation under which public spirited person were permi­
tted by the Court to seek redress for those whose life and liberty
was at stake due to their grievances but they were nota able to
come to court due to poverty or any other in capacity. Under this
device the Supreme Court and High Courts do not insist on a
regular writ petitions and even a letter written or addressed by a
pliblic spirited individual or social action group or even a report
in a newspaper is sufficient to ignite the jurisdiction of the
courts,

37. B.Brabbi -'"the right to life and the need for, a new
constitutional strategy of enforcement1' a paper presented
at U. G. C. Seminar on Judicial Activism and Social Change"
at Faculty of Law, University of Jammu dated 14-2-67 to
17-2-87.
38. Mithu v. State of Pan.iab. AIR 1983, SC 473,
 - 703 -
This concept of Public interest litigation was evolved by
Justice K. Iyer in Mumbai K am gar Sabha. ^ On the plinth of equal

justice the rigid concept of ’locus standi' was given liberal inter­
pretation, Its importance was discussed in Rati am Municipality^
and Fertilizer Corporation.^1 The concept was given a comprehensive
up
exposition in Judges Transfer case. Though the Court cautioned
its maintainability, if he is acting for personal gain or other
oblique consideration. Its further elaboration was found in A si ad
Workers Case where rigid law of locus standi was diluted by
44
liberal interpretation of Article 39-A and it. got momentum in
Bandhua Mukti Morcha^ etc,^

39» Mumbai K am gar Sabha v. Abdul Bhai. AIR 1976 SC 1455»

40. Municipal Council Ratlam v. Vardhi Chand, AIR 1980, SC 1622.
41. Fertilizer Corporation Kamgar Union Sindhri v. Union of India,
— —----------------------------------------------------------------------------—~~

42. 5.P. Gupta v. Union of India. AIR 1982 SC 149.

43. People’s Union for Democratic Right v. Union of India, AIR 1982
SC i'4'73. "
44. Article 39-A (by Constitutional 42nd Amendment Act of 1976).
Besides the Constitutional provisions, the mandate of the
directive had the statutory sanction in S.304 of the Cr.P.C.
which provides that where in a trial before the court of
session, the accused is not represented by a pleader, and where
it appears to the court that the accused had not sufficient
means to engage a pleader, the Court shall assign a pleader,
for his defence at the expense of the State.
45. Bandhua Mukti Morcfaa v. Union of India, AIR 1984 SC 802.
46. Keer.ia Chaudhary v. State of M.P.» AIR 1984 SC 1099.
Mukesh Ad van i v. State of M.P., AIR 1985, SC 1363.
Sheela Barse v. State of Maharashtra, AIR 1983 SC 378,
Sheela Barse v. lb ion of India. AIR 1986 SC 1773.
Sheela Barse v. Secretary Children Aid Society. AIR .1987 SC 656.
Sheela Barse v. Union of India. AIR 1988 SC 2211,
 - 704 -

The freedom and democracy exist for vast masses of the people*
Thus the apex court encouraged public spirited people, having suffi­
cient interest, to knock the door of the court when, public .injury is
caused from unfair, unjust and unreasonable executive action and to
protect life and liberty of the people. The court gave relief to
prisoners,^ undertrials,^8 workers^ - women and children and
50
particularly to a classless class - the bonded labourers despite

47* Hussainara Khatoon v. State of Bihar. AIR 1979 SC 1360.

'HoskaF''vT State of Maharashtra, (1979) 1 SCR 192.
48. Sunil -BatraCi) v. Delhi Administration, AIR 1978 SC 1675*
AIR 1980 SC 1579.
Kadra Pehadiya v. State of Bihar, AIR 1981 SC 939
Women Prisoners (under trials)
i. Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1367*
AlFT979^rT377TAlR 197^^1^757“
ii. Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
The court in relation to women prisoners suggested that four
or five police lock ups should be selected in reasonably good
localities where only female suspects should be kept and they
should be guarded by female Constables. Interrogation should
be carried out in the presence of a female police Officer/
Constables. The facts of arrest and if taken to police lock
up by the police, must be informed immediately to the nearest
legal aid Committee by the police. A lady judge may be deputed
by the City Session judge.to make surprise visit to the police
lock ups with a view to provide the arrested person an oppor­
tunity to air their grievance and ascertaining what are the
conditions in the police lock ups and whether the requisite
facilities are being provided. The Magistrate before whom an
arrested person is produced shall enquire from the arrested
person whether he has any complaint of torture or maltreatment
in the police custody.
49. i. PUDR v, Union of India, AIR 1982, SC l473.(Asiad. Workers case)
ii. San jit Ray v. State of Rajasthan, AIR 1983 SC 328.
Labour Working on Salal Hydro Rro.iect v. State of JiK..
AIR 1984 SC 117.
50. Sandhua Mukti Morcha v. Union of India. AIR 1984 SC 802.
Neerja Chaudhary v. State of M.P., AIR 1984 SC 1Q99.
Mukesh Advanl v. State of M.P.. AIR 198§ SC/3 63
Balram v. State of M.P., AIR 1990, SC 44.
 - 705

all the criticism that this new device of would open the flood gates
for litigation and result into conflict with the executive. In fact
the device of Public interest litigation proved to be boon for the
poor, ignorant or socially or economically disadvantaged position.
The activist approach of judiciary to protect life and liberty for
maintaining hunan dignity deserves appreciation. The concept of PIL
(Public interest litigation) is appreciable because it requires no
Court fees in filing it (PIL).

Bur the year 1990-1991 witnessed an increasing trend where

public interest litigation was abused and misused by the people in
power. Numerous petitions were filed which involved private interes'
In such cases Courts should be extra vigilant and they should not
allow such petitioners in the name of Public Interest Litigation.

The Court also referred to the international Human Rights

Conference in Tehran called by the General Assembly in 1968 where it
was declared that "since human rights and fundamental freedom are
indivisible, the full realisation of civil and political rights
without the enjoyment of economic, social and cultural right is im-
52
possible.

In Sunil Batra(ii), the court made available the writ of

habeas corpus to save prisoners from prison torture. Whereas till
now it was available for release of person. The court started to

51. Congress(I) filed petitions in public interest to quash the

request for letters rogatory in the Bo for s investigation. Benami
Litigation was filed on behalf of Ambani's in the Supreme Court
to quash pending criminal proceedings against them. A PIL was
filed to ash the Election Commissioner to derecognise communal
parties. Thirty Patel, Personal Liberty under the Constitution
..of India, (B.J.Publishers,""Hew Uelhi 19937 ~
52. L.j. De, -NgM_ijlfflgQJ5lpn of the Constitutional law (Eastern Law
House, New Delhi (i991> - PIL (Exploitation of Labour p. 9.
 - 706 -

adopt a new constitutional jurisprudence by permitting the enter­

tainment of Habeas Corpus petition through letters and applied the
concept of fair procedure that led the court to prohibit solitary
confinement by the jail authority*^ as it had a degrading and dehu­
manising effect on prisoners. Hut the Court reserved its imposition
in exceptional cases, for instance in case of dangerous character,
who (convict) must be segarated from other prisoners. The same
54
principle was reaffirmed in Sunil Batra(ii),. hlshore Singh and
55
Rakesh Kaushik. ^

The judiciary tried to convert zoological existence of

prisoners into human existence by providing protection under Article
14, 19 and 21 against bar fetters. The human values conscious court'
forbade putting of bar fetters*^ The court favoured the imposition

of bar fetters only in 'rarest of rare cases' where no other alter­

native was available to comply with the functional compulsions of
the security and that is also after following the principles of
natural justice. The court also did not permit the putting of leg
irons on undertrials in Sunil Batra(l) and Ka&ra Pehadiya. The
Supreme Court directed the Union Government to frame rules/guide
lines in Aeltemeah Kein^ regarding the circumstances in which hand

53. Sunil Batra(i) v. Delhi Administration, AIR 1978, SC 1675.

54. Kjshore Singh v. State of Rajasthan, AIR 1981, SC 625.
55. Rakesh Kaushik v. Supdt. Central Jail, Hew Delhi, AIR 1981,
56. Sunil BatraC i) v. Delhi Administration, AIR 1978 SC 1675*
Snail 'B'atra("i I) v« 13elni ‘Administration, AIR 1980 SC 1579*
Fjem ~Shanker Bhukla.v." Delhi Admnr~AXH 1980 SC 1535.
'ari'd "kishore' ^ihgh""v. State Rajasthan, AIR 1981, SC 625.
57. Kadra Pehadlva v. State of Bihar. AIR 1981, SC 959.
58. Aeltemesh Rein v. Union of India, AIR 1988 SC 1768.
 - 707 -

cuffing may be resorted to in uniformity with the Judgement of

the Court in Prem Sukhla^ and then to circulate them among the

State and Onion Territories in India.

Charles Sobra.i^0 and Sunil Batrai ii> put a ban on the

practice of keeping undertrials with convicts in prison to bring

fairness in Article 21 which ensured life end liberty. Sunil
Batra(ii) protected the young* inmates of Jail from the sexual
exploitation by the adult prisoners and Sunil BatraCii} and
Mohammad Qlassudin^ protected the prisoners from doing harsh and

degrading jobs in jail. Thus the Supreme Court protected the

prisoners from such excesses. Sheela Barse proved to be panacea
where the court gave directions to provide adequate protection to
women and child prisoners. The Court ordered to send children in
remand-house, children home and observations house ^ so that they
may develop in healthy conditions of freedom and dignity to protect-
them against exploitation and dehumanising efforts of the priso­
ners.

The Parliament enacted the Juvenile Justice Act, 1986 on

the suggestions of the Supreme Court for the enactment of uniform
children Acts for whole of the nation. The Apex Court included
the right zo socialise with family members, friends and interview

59* J aswal h., The Role of the Supreme Court with regard to the*
Right to Life and Personal Liberty Ashish P'ubiishing 'House,
Panjabi Bagh, W.Delhi 1990)» p. M7.
60* Charles Spbraj v. Superintendent and Central Jail Tihar,
hev/'Uelhi/'AlR 1978 sCj5i4'.
61* Mohammad- Qiasuddin v. State of A.P., AIR 1977, SC 1926.
62. Sheela Barse v. State of Maharashtra. AIR 1983, SC 378,
63. Sheela Barse v. Union of India, AIR 1986, SC 1773.
Sheela Barse v. Secretary, Children Aid Society, AIR 1987,
SC 1782.
 - 708 -

with the legal adviser under Article 21 in Sunil Batra(ii) and

CL
Francis Hull In and even to give interview to press who were death
sentences^ but subject to the just, fair and reasonable regulations

of the jail*

The scope of prisoners rights under Article 21 was enlarged

by permitting the prisoners to donate organs. Satwant Singh, a
convict in Indira Gandhi assassination, availed this right to denote
his eyes and other organs of the body.^ The Supreme Court in many
cases^ recognised the prisoners right to bail as a part of personal

liberty under Article 21 of our Constitution so that he may have

proper time to prepare his defence.,

Another jewel in the crown of personal liberty was increased

by directing the state to pay and fix for the prisoners - the same
reasonaole wages which a freeman gets for the same type of work
done by him.

Thinking of the undertrial prisoners who had spent longer

period than that for which they would have been detained, had they
been tried for the offences committed by them. The scope and ambit
of Article 21 was widened by the Supreme Court by including the right
to speedy trial as an intergral part of right to life and personal
liberty. For the court, the "procedure established by law" could

64. Francis C, Mullln v. State of Bihar, AIR 1981 SC 746.

65. Frabha butt v. Union of India, AIR 1982 SC 6.
66. See Tribunef (Chandigarh, 6 January 1989,? p. 1.
67. Babu Singh v. State of U.P., AIR 1978 SC 527
Hot! Rain v.
------------ --WT- -- State of
v <2 y t; u M.F.V
x am AIR 1978
* * » , njuv SC 1594.
ly (o ow iyyH-*
Hussainara Khatoon'v. state of Bihar. AIR 1Q7Q SC
AIR- 1979 SOJT355Tair 'i97r'Stn577rAlR 1979 sc 1819.
68. Supra note Si*
 - 709 -

only be just, fair and reasonable if it ensured speedy trial*"'

But the executive could not find time to think of the reformist
approach of the judiciary and it had to intervene to release the
undertrial and thus to rehabilitate the prisoners. The court
also mooted an idea that it requires reorientation of prison staff
and converting prisons from punishment cells to the correctional
homes. ‘ The Supreme court recently in Nilabati Behera has held
that State has duty to ensure that a citizen in police custody or
prison is not deprived of his right under Article 21 except in
accordance with law.

The judiciary eleborated the concept of right to life and

personal liberty under article 21. It provided home work to the
executive and legislature to take ahead this constructive job. But
these two sister-organs of judiciary could not come up to the level
to complete this task allotted by the judiciary. It will be appre­
ciable if the reformative approach, adopted by the court through
judicial activism, is given due consideration by the executive and
legislature.

All such approaches of the Supreme Court will be hollow until

and unless the temple of justice is easily accessible to all who
need its help to protect their life and liberty. Nothing, except
legal aid, Can be best judicial alms to the poor for this purpose,

69* Bussainara khatoon v. Home Secretary. State of Bihar, AIR 1979.

^T5So: 1 ~----------------- --------—---------
70. Han too Majumdar v. State of Bihar. AIR 1980 SC 847.
Kdiatri v. State of 'Bihart" A IK 1981 SC 928, 1068.
K'adra 'Pehadiya v. State of Bihar, AIR 1981 SC 939.
Satblr v. Spate of~Bihar. AIR 1982 SC 1470.
71* Sunil Batra v. Delhi Administration. AIR 1980 SC 1579.
72. Nilabati-Behera (Smt. )Alias Lalita Behera (through S. C. legal
Aid Committee) v. State of ' Orissa & OthersC 1995)2 SCC 746.
 * 710 -

but tiie miser judiciary La sixth decade refused to unlock its

73
treasury for such victims whose life and liberty was put at stake*

The law can not be allowed to be prestituted by a fortunate few and

legal aid movement was initiated for social justice to the poor.

Our legislature added Article 39-A through Constitutional

(Amendment) Act, 1976 which requires the State to secure to provide

free legal aid by suitable legislation or scheme so that opportuni­

ties for securing justice was not denied to a person on account of

his economic or other disabilities. In the words of Krishna Iber,

the provision invests legal process with functional relevance and

74
promotion of social justice through law.

Though Article 39-A is contained in directive Principles of

State policy and it does not confer a constitutional right on the

75
accused to secure free legal aid. hut it is the Court in rioskat

wnich made Article 39-A as an interpretative tool of Article 21 to

provide free legal aid as a fundamental right to import complete

76
justice. The hussainara*0 reminded that this device is essential
nn
element to just, fair and reasonable procedure. It is the Khatrl1

that foroade the State to escape liability by pleading financial

constraints. The Sheela Barse also joined hands to make this

judicial activism more effective.

73. Janardhan Reddy v. State of Hyderabad, AIR 1951, SC 217.

f arsHIlnffh" v. at at e7 ' AlK'^i 9517 ' ScTfflTr.
74. V.R. Krishna Iyer, Some Half-Hidden Aspects of Indian Social
Justice, Sulkani Mahajan Memorial .Lectures, April 1979T^astern
hook Company, Lucknow, 1979), p. 38.
75* M.H. Ho skat v. State of Maharashtra, AIR 1978, SC 1548.
76* Hussainara Khatoon v. State of Bihar, AIR 1979, SC 1360; 1369; 1818.
77. Khatri v.. State of Bihar. AIR 1981, SC 928, 1068.
78. She el a Barse v. State of Maharashtra. AIR 1983, SC 378.
 - 711

The Court rightly gave a clarion call to the lawyers also

to become the active members of the rising legal aid movement.
Because the lawyers are as much instrument of the processual
justice as the legislature which enacts, the executive which imple­
ments and the judiciary which protects. But it could not encourage
the executive to follow the path of new^ judicial activism in spite
of its repeated warnings. Although the court again, in Kadra
Pehadiya touched another aspect of legal aid by providing fairly
79
competent lawyer to the convict through State. But ft an j an Dwivedi
broke this chain by not allowing mandamus to be issued to the state
for grant of competent lawyer.
Rn
The Apex court, in Darshna Devi took a practical step of
addition of court fees and thus expanded the scope of legal aid
jurisprudence to have equal access to justice. Because the apex
court in this case was deeply hurt when Haryana Government dragged
the dependents of a victim of an automobile accident, who were
deprived of their sole bread-winner, to the Supreme Court, demand­
ing court fees to file their claim for compensation. The Court
expressed a deep concern over the attitude of the State in handling
the legal aid cases*

This movement, the i- Supreme Court said, can be accelerated

81
through professional organisation, voluntary organisations, social

79* ftanjan Dwivedi v. Union of India, AIR 1983, SC 624.

80. State of- Haryana v. Darshna Devi, AIR 1979, SC 855.
81. ftakesh Kaushik v. Supdt. Central Jail, Hew Delhi, AIR 1981.
StTTTgTT'
 » 712 -

82 83
action groupsp and Lok adalats.

Thus the .Supreme Court has used the armoury of law in such a
way so as to make the right to life and personal liberty effective
and reminded the executive and legislature to fulfil their consti­
tutional obligation to convert this right into reality and made the
poor and unable realise that the human right protector is cautious
of their rights to bring them at part with other individuals in
so ci ety.

It is submitted that legal aid programme which is needed for

the purpose of reaching social justice to the people can not afford
to remain confined to the traditional or litigation legal aid pro­
gramme but it must, taking into account the socio-economic condi­
tions prevailing in the country, adopt a more dynamic posture and
take within its sweep what may be called strategic legal aid pro­
grammes consisting of promotion of legal literacy, organisation of
legal aid camp, encouragement of public interest litigation and
holding of Lok Adalat for bringing about the settlement of disputes
84
whether pending in the Court or outside.

82. Centre of Legal Research v. State of Kerala, AIR 1986, SC 1322.

"See' also' Aik 1966, "SC 2195.
83. Shri _ Sachidanand Pandey v. State of West -Bengal, AIR 1987,
sC 1169. Here guide lines for 'filling Him were desired to
be laid down and to <?«-t -lines correct parameters for the
entertainment of such petition. A fear was expressed that
if the court does not restrict the free flow of such cases
in the name of public interest litigation, the traditional
litigation will suffer and the court of law; instead of dis­
pensing justice will have to take upon themselves administra­
tive and executive functions.
84. D.J. He, the hew Limensions of the Constitutional Law,
(^astern Law House, Hew belhi, 199f). ~ '
 713 -

The Supreme Court through judicial activism, has inter­

preted Article 21 so lioerally that widened its horizon to include
85
in its various or rather every aspect of life. In Olga Tell is,
the Supreme Court emphasized that right to life includes the right
to- livelihood. In Urged Raflffi’, the Supreme Court interpreted the

right to life as not .only right to livelihood but also the right
to means of livelihood, because to deprive a person of his right to
life, deprive him of i is means of livelihood. In this way right
nexus was made by the Supreme Court between - right to livelihood and
rignt to life by interpreting the ambit and scope of articles 39(a)
and 41 read with Article 21 of the Constitution.

But So dan Singh0'' gave a set back to the healthy trend of

Supreme Court in this regard dissenting from Olga Tellis. It

appears that the apex court committed .an error by not including the
right to hawk, which forms the basis of the livelihood of these
hawkers, in Article 21. But the same court in the following year
covered the gap made by So dam Singh. The court in Shanti State
QQ

Builders observed that right to life under Article 21 would take

within its ambit the right to food, right to clothing, right to

85« Olga Tellis v. Bombay Municipal Corporation, AlR 1986, SC 180.

See" also D'ehru ^'arg Cabin association v. i^adasa Dagar Pal Ik a.
a IK 1^88 ROC 59
State of ii.R. v. Umed Ram, AIR 1986, SC 847**
Delhi municipal Corporation v. Gurnam caur, AlR 19S9» SC 58.
• State of H.R. v. limed Ram. AIR 1986, SC 847.
87. Sadfl«$?/.j4 •/>/-£
V-/U-0 S-C iGSg
/Iff

88. Shanti Star inulders. v. Par a van K.Tomate.1990( 1> SCC 520.
See also Subhash g-uznar v. State of Bihar, ALR 1991, SC 420.
 - 714 -

£JQ
decent environment ^ and a reasonaole accommodation to live in.

Alongwith the above mentioned approaches of the Supreme

Court. Through its judicial activism, it will be unjust, if its
approach to award compensation, to those who might have suffered
unduly or harmed badly by State or its servant, remains undiscu­
ssed. As the life and liberty of the individual is the liastion
of democracy. The Court innovated compensatory justice to
mulct, fhe State in payment of huge monetary compensation for
violation of rights under article 21. It comp ells all those even
in uniform to rethink: that law is above all and their misguided
sense of justice cannot allow them to take the law into their own
hands. It is really a new device to protect the most precious of
90
precious rights under Article 21.
Rudul Shah.^ Sebastian H.Hpngray^ and Bhim Singh^ are

some of the leading cases which deserve mention for award of mone­
tary compensation for infringement of their right under Art. 21.

89* See also Suohash Kumar v. State of Bihar, AIR 1991, SC 420
wherein it was held that 1337 Ts~ m a in t abTe for ensuring enjoy­
ments of pollution free water and air which is included in
the right to live under Article 21 of the Constitution.
See also Chhetriya Rardushan Mukti Sangharsa Saraity v. State
of. U.fr* AIR 1990 SC 2060» where thi""Supreme Court fo.und” proper
compliance of Air Pollution & Control Air and no conduct
attributable to owners leading to pollution of air or ecolo­
gical imbalance calling for interference by the Court. It
did not hesitate to dismiss the petition when it was found
eased on enmity and without merit.
50. Khatri v. State of Bihar, AIR 1981 SC 928 (Generally known as
Bhagglpur Blinding case; where the S. Court, for the first time,
considered the question of granting of monetary compensation.
See also .Sant Sir v. State_of _£ihar, AIR 1982, SC 1470 and
Veena Sethi v. State of Bihar] AlrT 1983, SC 339. In these two
cases also the 3C considered the question of granting monetary
compensation to the individual against the lawlessness of the
State. But it did not actually grant any compensation to the
Victims.
51. Rudul Shah v. State of Bihar, AIR 1983, SC 1036.
92. Sebastl an M-Hon gray v. State of Bihar, AIR 1983, SC 1086*
93. State of Jgft. ,UR me*. SCLaL.
 - 715 -

The amount of compensation varied in all the cases where it

was given by the court. Because from RuduL Shah to Shim Singh no
basis ofor the quantification of amount of compensation was laid
down by the Supreme Court. It was left to the discretion of indi­
vidual judge handling a particular case to decide the amount of
compensation to be paid in a case. It is submitted that clear
guide lines should be provided by the Supreme Court in this regard.
C. Mehta^ cleared the meaning of phrase 'appropriate case', i. e.

where infringement of right is gross and patent and social, economic

or any other handicaps do not allow than to initiate and pursue
action in the civil courts*
q5
There is a leading case where the police atrocities
effected the life and liberty of a child. The Supreme Court
directed the State Government to pay Rs. 75000/- as compensation to
the month of 9 years old child who died due to assault and beating
by the police.

It may be submitted here with the liauility of the erring

official/officer should be fixed and brought to the books. The
amount of compensation, ordered to be paid by the Court, should be
deducted from his salary proportionately if not wholly so that the
others may learn lesson ana there may be check and fear on committ­
ing such ing such barbarious acts under the-umbrella of sovereign
function.*^

9^* See also M.C. Mehta v. Union of India, AIR 1986, SC 1086 at 1091.
P> U.D.R. v. State of Billy,' AlU 1967. SC 355.
A* S.~"ffllttal v.‘ St ate of ""U'.’P. t AIR 1989, SC 1570.
95. SAHiSLI Women1 s Resources Centre v. Police Commissioner, AIR
1990, Be 515.“
See also State of Maharashtra v. Ravi Kant S.Patil (1991)2 SCC
373. ' '
96. bathwal. P.S., "Compensation for violation of right under Art.
21 of the Constitution of India,11 MDU haw Journal, 1991*
 - 716 -

It is in the interest of the State that family life should

be maintained and that homes should not be broken up by the disso­
lution of the marriage. When in number of cases there is no con­
ciliation, it is/ can not oe a ground for striking down the law.

The question whether restitution of conjugal rights, which

can be ordered by a Court under section 9 of the Hindu Marriage
Act, when either the husband or the wife withdraws from the Society
of the other without reasonable excuse, was an invasion on the
right to life and personal-liberty of the person against whom such
an order was passed, came up for consideration before the Supreme
Court in Saroj^ to resolve the controversy between the decisions
of High Courts of Andhra in Sareetha.^8 and that of Delhi High Court;^

The: Supreme Court . held that section 9 of Hindu Marriage Act is

not violative of the right to life and Personal Liberty under
Article 21 of the Constitution.

The expression "Conjugal rights" means the right which

husband ana wife have to each other's society. The rights are
mutual and reciprocal. Marriage is an institution which consti- ,
tutes the foundation of a civilised society. Sanction of Hindu
Marriage Act prevents the withdrawal of the erring party from the
society of the other without any reasonable excuse.

97* Baroj Rani v. Sudarshan Kumar, AIR 1984 SC 1562.

98* Sareetha v. Venkata Subbiah, AIR 1983 A.P. 3 56 wherein the
remedy of restitution of conjugal rights was held to be bar­
barous and violating the right to privacy and human dignity
under Article 21.
99* Harvlnder Kaur v. Harnand Singh, AIR 984 Del.66 where in the
Court, emphasized that it is a social obligation to live in
the society of other. It is not creation of statute.
 - 717

Also the area of environmental jurisprudence is not left

untouched by the Supreme Court through its judicial activism, The
Supreme Court has treated the right to live in a healthy environ­
ment as part and partial of Article 21 of the Constitution. The
Supreme Court'*00 and various high Courts101 have not left this
battle ucfought against slow poisoning by the polluted atmosphere
caused by environmental pollution and spoliation. All these causes
have been treated violative of article 21.

The activist court expanded the ambit of Article 21 in

102
harm an and hatra- by holding that it is the professional obli­
gation of all doctors, whether Government or private, to extend
medical aid to the injured immediately to preserve life without
waiting for legal formalities to be complied with by the police
under Criminal Procedure. It is the obligation of those who are
incharge of the health of the community to preserve life so that
the innocent may be protected and guilty may be punished. The
Government should immediately make such provisions in law and
amendment in existing laws if required so that the medical pro­
fessional and members of public escorting the injured may not
feel harassed as and when if called for. If this ruling/decision
of the highest court is followed in its true spirit ; it would
help in saving the lives of many who die in accident because no
medical aid is given by doctors on the ground that they are not

100. Kendra v. State of UP. AIR 1985, SC 652. See also

AIR 1985, SC 12591 AIR 1987, SC 359 & AIR 1937 SC 2426.
,M. C. Mehta v. Union of Indiaf AIR 1987 SC 1086 (
Gas Leakage case). M»C. Mehta v. Union of India. AIR 1988
SC 1037 (Ganga Water Pollution case).
101. T.Damodhar Rap v. S.O. Municipal Corporations Hyderabad. AIR
1987 A.P. 171. ----------
jjlhkri Devi v. State. AIR 196Q H.P. 4.
L.K. Koolwal v. State. AIR 1988 Raj. 2.
102. f ana an and &atra v. Union of India & Others, (1989)4 SCC 286*
 - 718 -

authorised to treat medic© legal cases* Moreover the medical

profession is now covered under Consumer Protection Act. Remedy
can be provided vnder it if medical negligence is proved on the
part of the doctor - Government or Private.

The law and order situation has deteriorated to a great

extent. There is a reign of terror every where. The violence,
kidnapping and extortion are rampant. Peaceful and law abiding
citizens are often afraid to come out of their houses after dark.
At the same time the word 5life' in Article 21 has been held by the
Supreme Court to mean a life of dignity. At this critical jmcture
103
the holding of Justice Katju of Allahabad High Court that when
the state authorities are not properly discharging their function
to protect the life and liberty of the citizen, the only reasonable
view can be that the citizens must defend themselves and they can
effectively do so if they are armed. The ruling of this High
Court that the right to carry non prohibited fire arms, is part, of
Article 21 - the right to life and personal liberty of the Const!-
tution, is appreciable dimension.

It is submitted that Article 21 through its judicial inter­

pretation has covered many ©r say all faces of life and thus
judiciary has given clarian call to the legislature and executive
to assist it in protecting the rights of the individual so that
■fchfi dignity and decency of life may be maintained.

103. Bal Krishan, “Law & Justice", Hindustan Times, Hew Lei hi.
May 17, 1993, p. 12, Vol. 4. -------- ------- -------
Ganesh Charm a v. D.M. Almora, AIR 1993, All.
 - 719 -

New frem A.K. Go pal an, we have visualized and experienced

the narrow interpretation of the Article 21 by the judiciary. It
continued till internal emergency with no coherent, consist ant and
a balanced approach taken by the highest court. It showed its
effect in A.D.M. Jabalpur where life and personal liberty was put
stake. After emergency the Supreme Court tried to improve its
image and protected it against the inactions of the State to secure
the faith lost by the people at the time of emergency.

The current transitional phase i. e. may be termed as era of

judicial activism and social justice in the premise of equality.
Our Constitution assumed a new dimension after the historical
1Q L
decision in Maneka Gandhi, where the concept of reasonable, just
and fair was written in Article 14, 19 and 21. Today no law can
stand the Constitutional test which is arbitrary or in other words
not reasonaole, just and fair. Maneka took first lead to make
life worth living full of dignity and decency.

The Supreme Court evolved new Constitutional rights which

were hitherto unknown to our people. No accused can go undefended
now and he can claim free legal aid or assistance as a matter of
his constitutional rights. There are certain other new concepts
that have came into play in the domain of our Constitution which
have been discussed in details. Though these rights were never
traced in past, the Chapter of fundamental rights, yet they have
been given a place in our Constitution by gradual and progressive

104. Maneka Gandhi v. Union of India. AIR 1978 SC 597.

 - 720 -

interpretation magnifying the direction principles through the

established fundamental rights under Articles 14, 19 & 21. Thus
the Court virtually enforced the directive principles threugh the
window of fundamental rights.

Many enactments ware passed at the instance of the Court.

Judiciary and legislature tried to sing in the same tune. But it
was not tolerable by the executive which undid many a times what
was done by its sister organs judiciary and legislature.

The role of Judiciary remained that of the protector of the

fundamental and welfare laws, to impart Justice to all, and to
make rights under Article 21 meaningful. Many a times it had to
fill the vacuum created by the Parliament though it was not appre­
ciated. Many devices were innovated by the Judiciary which got
legislative sanctions to make the right to life and personal
liberty effective. Activist role of the Supreme Court has been
proved blessings in disguise, though internal emergency experience
was not healthy one.

Despite the various legislative measures and above mentioned

Judicial efforts to make dignified living of the people, there is
a class of human beings, who are living in bondage. Such a class
is still surviving in the exile of civilization. Many enactaents
on papers and with no proper implementation are in existence. All
these are without teeth. This weak and disabled creature is lick­
ing towards the society and its protector to come andto rescue him
so that he may breathe fresh air, get a bondage free morsel of
food for his family and live like free man in the society* This
helpless individual - the bonded has been struggling for centuries
 - 721 -

to get rid of social, economic and physical bond. Who like other
creatures, is born free but he is still in bondage.

It is discussed that this bonded labour system is not new.

It has a long history of its existence. It was deep rooted in
Mughal period1^ also. Its mention is available even in Ancient
times. Hq concrete measures seem to have been taken by the rulers
to weed out this practice from the society. Its facets - agrestic,
slave system, slavery, exploitation, forced labour (begar and other
similar forms of forced labour) are slur on the name of our society
due to our social constraints like extensive poverty and resource-
lessness alongwith their ignorance and unaw&reness. Our society
has taken them to a level where they are compelled to abandon all
sense of individual dignity and self respect merely to keep their
body and soul together. They want to live in bondage instead of
dying of starvation because there is no alternative for them. The
government schemes are also more in paper than in practice. Gismer
Myradal has beautifully pointed out that *

"All social mechanics in India operates mainly

in accordance with the power structure and a
select group of upper class citizens manage to
use their political will to pocket the major
benefits of development and growth. In contrast,
the very poor and inarticulate masses, split by
caste and community allegiances are too disorgani­
sed to press their demand for fairer treatment,
upon the upper strata". 106

105. A.K. Lai, Politics of Poverty - A Study of Bonded LabourC 1077).

P* 91* Ghitkara M.G. & Mehta. P.L. Law & the Poor (A^hiph
Publishing House Pan jab, Panjabi Bagh, w, Delhi, 1991>82,
J. Bremen* Patronage and Exploitation,9 (1974)
Sivaramayya, Inequalities and the Law. (Eastern Book
Company, Lucknow, 1984)v p.148.
106* Oynnar Myr&daX, Asian Drama* The Challenge of World Poverty
(Patheon Books, 1970), pp*61-62, 105 at seg. A well known
critic the drama, being unfolded in Asia * (Anand K.Dubey,
Social Justice and Bonded Force in India (PWP Jaipur, 1989)
 - 722

Due to high, degree of exploitation in the system of bonded

labour, the masters have always considered them as their property
under their control and even regulate their every activity in life.
The wishes of the superiors have always mattered. These poor bonded
fellow had to surrender before their compulsions, economic social*
mental, physical and political. They remained the victim of all
inequalities and exploitation as unprivileged class with no justi­
fication. They never bad the courage to raise his voice against
the hunger of his family, molestration of his wife/daughter or any
other cruelty of the master. Though efforts, at national and
international level through various covenants* conventions, crga«
nisations and charters were made to eradicate this social evil,
but all these undoubtedly remained on papers. No charter, Bill
of human rights or welfare legislation could provide them human
dignity and decency, it all proved to be political stmt.
The first step to prevent the abuse was initiated by the
Britishers in 1843 through Indian Act of 1843,In spite of
being legally abolished the system prevailed.
The intellectual interest in the problem of bonded labour
in India is only a recent phenomnon, the problem received the
first attention in 1926.108 During the year following the first
world war, peasants for the first time entered the political arena

107. See Dr. P*L. Mehta, A Critical Study of Constitution and

safeguards to Scheduled Tribes in India with special
reference to Himachal Pradesh. 1984. p. 309 1A thesis
submitted for Ph.D. in ti.r. Uhivarsity, Shimla).
108. A.K. Lai » Politics of Poverty *•- A Study of Bonded Labour
(1977) p. 13: -------------------------------------
as a group* This alongwith other factors persuaded the British
Government to appoint a Royal Commission in Agricultural in
year 1926* However, the Commission also could not touch the
problem on account of limited frace of reference. Inspite of
peasants revolt and emergence of all India Kisan Sabha# these
seat in eked peasants failed to attract the attention of the Britisher 19*^

It was only after independence that the government realized

the gravity of the problem and incorporation of Article 21 & 25 in
the Constitution was the result of this realisation. The judiciary
gave the widest amplitude to Article 21. In addition some of the
provisions of the Constitution, protecting workers and children
against exploitation and moral and material abandonment have been
provided with life and vigour by Judicial process. The practice
of bonded labour is not only an ugly and shameful feature but is
also an affront to basic human dignity. It constitutes gross and
revolting violation of constitutional values. Article 25 was
specially incorporated in our Constitution to abolish ‘•Segar and
other similar forms of forced labour** and thus system of bonded
110
labour stood totally prohibited.

During the consideration of ArticL® 17 of the Draf*

tut ion, which corresponds to article 25 of the Constitution, r^j
Bahadur observed^11 i

**Begar like slavery has a dark and dismal history

behind it. As a man coming frost Indian States, I

109* Ibid at p. 15-14.

110. See text of Article 25 of the Constitution and Bandhua MUcti
Morcha v. Uhion of India. AIR 1964, SC 802. ““
111. C.A.B. 809* See also the views of T.T. Krishnamachari
Id. at 810-11.
 - 724 -

know what this be gar, this extortion of forced labour,

has meant to the downtrodden and dumb people of Indian
State. If the whole story of this began is written*
it will be replete with human misery* huaan suffering,
blood and tears".
They (founding fathers of Constitution) wanted that Article
23 must free the poor* down trodden people from the curse of ‘begar’.
It constitutes a charter of freedom for the common man. But no
serious effort was made by the government for many years to trans­
late the philosophy of Article 23 into action and thus the Consti­
tutional philosophy of total abolition of bonded labour system
remained only confined to paper declaration.

However* the Government announced a new economic policy like

20 point Economic programme on duly 1, 1975* for the amelioration
of the Socio-economic conditions of the weaker sections of the
society in which it had been proclaimed • "Bonded Labour wherever
if exists, will be declared illegal".112

On the basis of this proclamation, the Bonded Labour System

(Abolition) ordinance, 1975 was promulgated by the President of
India on October 24, 1975, which came into force throughout the
country on February 9,1976 extending its execution to the whole of
India with a hope to fulfil the constitutional goal, to root out
this evil once for all and to ensure freedom to its citizens
guaranteed aider the Constitution.115 This Act was further amende*

112. Quoted in A.K. Lai, Politics of Poverty - A study of Bonded

Labour (1977) p. 92. -------
see Mehta P»L., Law and the Poor (Ashish Publishing House,
New Delhi, 1991) p. 83.
113. It is the fundamental right of every one in this country
assured under interpretation given to article 21 by the Supreme
Court to live with huaan dignity free from exploitation. The
right to live with human dignity enshrined in Art. 21 deprives
its life breath from the D.PS of State Policy and particularly
clauses (e) and (f> of Art.39 and Article 41 & 42 (dust and
huaan conditions of work).
 725

in November, 1985 to bring the 'contract and interstate immigrant

i iZi
work era* under the purview of the Act*

Xt was also made clear in the Bonded Labour SyateaCAbolition)

Act, 1976 that failure of any action on the part of the State
Government in implementing the provisions of this legislation would
amount to be the clear violation of Article 21 apart from Article
25 of the Constitution.1The Supreme Court has rightly held that
it was the obligation of the State Government to ensure total
eradication of the banded labour system.1 ^ But this hated end
barbarous system is still in existence. This pernicious practice
has not been satisfactorily eradicated from the national scene. It
still continues to disfigure the social and economic field in the
country. The philosophy of its total abolition remained merely on
papers than in practice.1 ^ The enactment miser ally failed to
remove the shameful scar from the Indian Social Scene due to lack
of proper identification of the bonded labourers, ignorance of
their rights and entitlements and obstruction by vested interests.
Because the vested interests have all resources at their command «
education, wealth, legal advice and political power. The Intended
beneficiaries of legislation are poor, illiterate and ignorant.

114. See also Mehta P«L. - Law & the Poor - (Ashish Publishing
House, New Delhi, 199177 “!^““ 6
115* Neerja Chaudhary v. State of M.P.. AIR 1984, SC 1099.
116. Ibid at 1101*
117. P.N. Bhagwati * "Law, Justice and under Privileged" in Janta
Vol.XXXIv No. 10, (June 3, 1984), p* 8.
 Some of the following reasons may be included for the failur
of the implementation of socio-economic legislation like the aboli­
shing bonded labour system.

1. Lade of Awareness of Legislation * For example the Bihar

Legislation of 192D implicitly assumed that a Kamiauti (bonded
labour) would be aware of the fact that the bonded labour agreement
would be valid for a period of one year only and a son would not
be victim of deceased father's agreement. But the son/family could
not retreat being in aware of the legislation. It is a highly
questionable assumption. Similar situation remained with Bonded
Labour System (Abolition) Act, 1976.

2. Lack of facilities for legal aid and advice * Barriers of

illiteracy and lack of communication may be the causes those hinder
the proper implementation of welfare provisions under the various
articles. Because these statutes are framed in a language not
known to the poor or if known, these are in a style unintelligble
to them. The remoteness from urban centres inhibit the weaker
sections from taking advantage of legal processes available to
them. In particular the provisions relating to compulsory regis­
tration of money lenders and protection given to the debtors under
money lenders legislation are ineffective because of the lack of
awareness, indifference and incapacity of the debtors to avail
themselves of the provisions.

^ack of Administrative and Political Will & The indifferent

attitude of administrators, 'towards the reforms meant for bonded
labourers, are the other barriers in this way. The government
orders are not properly implemented by them. The nonoffielal
 - 727

committees which are expected to supervise the implementation of

so do-economic legislation are mostly dominated by the vested
interests.

Any how if cases are instituted, instances are not unknown

when they had been withdraw A leading daily had occasion to
point out in its editorial t
HIhe Hardev Josh! ministry in Rajasthan, for
instance, cynically withdrew cases pending in the
courts against as many as 576 big farmers for keeping
sagrisn*118

4. Social and economic dependence of the weaker section ♦ In many

cases it can not be denied seriously that a bonded labour is in a
position to regain his freedom by running away from his master. But
what prevents the serf from adopting this method is the social and
economic dependence on his master. In simple words the bondage is
attractive because of the economic security it offers. He would,
thus, like to choose the status of bonded labour on nominal wages
through G\rt the year instead to choose the status of a casual
labour with long spells of unemployment and aider employment.

The master is normally his banker for his financial needs

which arc often for unproductive purposes like marriage, funerals,
festivals and sickness in the family. Unless this social and
financial dependence is eliminated, the exploitation inherent in
the bonded labour system can not be rooted out*

fhe South Bihar Study (Bhanderia Block) records the follow­

ing as the main causes of indebtedness.

118* the Times of India (Delhi) dated 12th Nqv. 1977.

See also "Bonded Labour 5 Invisible to the official eyes,
Economic and Political Weekly. Vol. XI. No. 45 (1976),
1754 Col. 2.
119* Bonded Labour in India, 134-136*
 » 728 «»

(a) Agricultural backwardness which is reflected in using

seeds whose yields is low, following the broad®casting
methods of sowing seeds, lack of healthy bullocks etc
also irapeds the progress of agriculture products*
(b> Addiction to drinking which comp ells than to borrow
during the lean period when they have no income for
the purpose of drinking.
( c) low daily wages paid to the agricultural labour which
amount to half the statutory minimun wages payable to
them.
(d) Absence of marketing facilities for minor forest.

The Report1^ revealed that the habit of drinking was mainly

responsible for incidence of bonded labour which many States tried
to curb, but failed. Surprisingly mass revolution wants to era&L»
cate the evil of drug edi ction and drinking of liquor whereas the
State Governments specially the Haryana, is using its machinery to
encourage the consumption of wine and liquor.

It may be submitted that the region/area in which the labour

class is working should be declared dry one to protect the health
and wealth of these citizens/workers*

5. lack of proper rehabilitation of identified and released bonded-

labour ?/ ~ .................. ~~~.~~.. ............ ...........

It is painful that very little attention is paid towards

identification andrelease of bonded labourers. Even if they are
released/freed, there is complete neglect of rehabilitation pro-
gramme for than, with the result, they go from slavery back to
starvation# The observations made by the highest court portray
that the State administration, so far, are clearly indicative of

120. Heerja Ghaudhary v. State of M.P., AIR 1984, SC 1099 at 1102.

 729 -

Indifference and inadequacy in securing identification, release and

rehabilitation of bonded labourers in the State. The authorities
not only remain silent spectators to the atrocities but also give
121 -o
patronage to these guilty Zemindars and contractors. Even today,
these unfortunate citizens of society continue to be exiles of
civilisation.122
Annual Report of 1991-9212^ reveals that 2,55,608 bonded
labourers were identified and released (position on 3l«3.199l) end
out of them, 2,22,935 were rehabilitated. Thus when many of them,
who were not provided with alternative source of living, had to
agree to the terms and conditions of the masters which were worse
than previous ones* it is because the Vigilance Committees provided
under the Bonded Labour System (Abolition) Act, 1976 are not even
constituted, if constituted, these have become defunct.

There are very few officers who really feel for the poor and
are determined with a sense of dedication to help them. Such
officers are eveready to check exploitation of bonded labourers and
restore freedom andsocial justice to them. Despite the sincerity
of the officers the unresolved problem of rehabilitation and fear-
psychosis keep them in bondage. After release when they face the
starving conditions in the world they are left with no option but to
go bade to their masters.

<21. Swami Amivesh, "Liberation of Bonded Labour in J»nta. Vol.36,

Wo. 4, February 28, 1982, p.5» See also Indian Express,
dated 29.3.1986, p. 8. ------------ -------
122. See for details of Laxmidhar Mishra, "Challenges of Retrieving
Bonded Labour" in Yogana Vol. 3l Wo. 8, May 1-15, 1987, p. 8.
123. Ministery of Labour, Government of India, New Delhi, Annual
Report (1991-92), p, 67.
 ta 730

6, The Social ostricignu also is the obstruction in their freedom* -

They are bornd with their masters to such an extent that they can
not leave places without their prior permission and are also for­
bidden from going for higher wages*

7* Failure of Land Reforms System * which were introduced to

reduce economic inequalities in rural areas* But the landlords
frustrated the effectiveness of reform by transferring their land
in the names of their bonded labour though in fact they, themselves
remained the owners.

8. Unequal Abnormal Indian Society * In our status conscious

society, people do not tolerate rights and privileges on equal
footings due to class and caste interest. Indian Socialism in
practical terms turned out to be pernicious programme for the
distribution of public largess to the not so poor, and the real
beneficiary never percolated to the needy one for whom they are
meant as they are most unorganised.

9» Flaming Process * Bonded Labour Ignored s In the area of

Industrial development, production and means of communication, we
are supposed to progress through these five years plans. Consi­
derable mount of finances is made available in Five year plans to
remove poverty and to fulfil the basic needs of ©very member of
society. No plan is directly and seriously linked with the aboli­
tion of bonded labour system. It is true, the nation has many
equally urgent problems to tackle with, but there is no disagree­
ment that this problem of bonded labour has to be attended fairly
and squarely.
10. Emancipation of Bonded Labour i is legal and moral necessity ♦
Though the problem affected national aoolo economic conditions, but
it is also true that no government can proceed without solving such
problems* This system of bondage, being a social evil, requires
its eradication at the earliest. It is our moral duty to identify,
release and rehabilitate than, under the Chapter IV and IV-A of the
Constitution of India*

11. International perception • Various organisations, establish­

ments, conventions, charter of Human Rights, I*L.O. - expect from
their members to enact suitable laws to protect human rights- The
march towards eradication of bonded labour system in Western
Countries is remarkable. We have also to cooperate these victims
in this movement, to protect their dignity as human beings, as
aimed at under the Constitution*

Our Supreme Court deserves appreciation in this matter for

playing an important role to make the right to live with huaan
dignity a living reality for millions of Indians* It also protected
them from exploitation through PH. Sven a letter, telegram or
newspaper report have been entertained 'as writ' to enable the have
nots to make their fundamental right 'to live with human dignity5 $
a reality. The Article 25 strikes at forced labour in whatever form
it may be, its violation is contrary to human values. The court
held that not only physical or legal force bub also the force arising
from compulsion of economic circumstances which leaver no choice of

124. P.U.D.R. v. Union of India. AIR 1982, SC 1475.

( Generally known as A si ad Workers case).
alternative to a person in want and compels him to provide labour
il, ateo forced labour,
even with a wage less than the minimum one*A The reminder of this
Court that violators of labour laws should be penalized with
adequate punishment, will ensure the observance of various labour
125
laws and other welfare provisions of the enactments.

The above stated case was relied in San.iit Roy, Labourers

working on Salal Hydro Project12^ and Bandhua Mukti Morcha*1^ It

gave further impetus to the protection of rlgbtto live with human

dignity and to protect the poor from exploitation. Holding of the
Supreme Court in Bandhua Mukti Morcha is appreciable when it rightly
pointed out that ‘right to live with human dignity* enshrined in
Article 21 includes protection of health and strength of the
workers, men andwo men and just and humane conditions of work. The
apex court suggested that labour and legal aid camps in mre prone
areas, investigative journalism, social action groups and voluntary
agencies may play impressive role to identify the bonded labourers*
The Court in Bandhua Mukti Morcha pointed out that psychological
rehab 11 it ion of bonded labour must also go side by side with physical
and economic rehabilitation otherwise the problem may arise in
absence of proper and effective rehabilitation.12^

125. Ibid.

126. San.iit Rov. v. State of Rajasthan. AIR 1983, SC 328.

12?* ^ho^er-Workin,? on Salal Hydro Project v. State of JgK,

128. Bandhua Mukti Morcha v. Union of India. AIR 1984, SC 1099.

129* Ministry of Labour, Govt, of India's Secretary letter dated
2 September, 1982.
 - 733

130
In the landmark decision of Neerja Chaudhary' the Supreme
Court went one step ahead to say that it is the plainest require­
ment of Article 21 and 23 that the bonded labourers must be identi­
fied and released and on release, they must be suitably rehabili­
tated# Thai and only then the liberty and freedom, to live with
human dignity, will become meaningful. The skilled an dun jellied
labourers should be rehabilitated separately.
The Supreme Court in P. Sivaswami1^1 reiterated the need for
rehabilitation of released bonded labourers.

It is submitted that the government would take into consi­

deration the various directions and guidelines laid down by the
judiciary and protect the labourers and workers from exploitation.132
It is also necessary to impress upon the administration that it
does not help to ostrich-llke bury its head in the sand and ignore
the prevalance of bonded labour instead of taking effective steps
towards its eradication*
The highest court of the land in T. Chakkallackai1^ thought
it better to appoint directly Additional Chief Secretary of State
as an officer. He will ensure compliance of court* s order and
will suggest ways and means for proper rehabilitation. He was
a3ked to complete this task within a period of six months of receipt
of appointment orders from the court.

130# Neer.la Chaudhary v. State of M.P.. A3R 1984, SC 1099.

131. P.Sivaswam1 v. State of A»P». AIR 1988, SC 1863.
132. Hal ram v. Stat^ of M.P.. AIR 1990, SC 44.
133. T.Chakkellackal v. State of Bihar and others. Judgement
ToHSyTwzrrrsc io———
(See also Been a Nath v. National Fertilizer Ltd; AIR 1992.
SC 457. ----------- ------ -—-------------- ---------
 734

The Court might be of the view that in this way serious and
proper attention be given to eradicate bonded labour by fixing the
responsibilities upon Additional Chief Secretary*

The Bonded Labour System (Abolition) Act, 1976 was amended

in 1985 to add an explanation to include contract labour and inter­
state migrant workman as given in section 2 of I*S*M*W* Act, 1979
within the ambit of the Bonded Labour System* Further, contract
labour (regulation and abolition) Act, 1970 does not provide for
total abolition of contract labour but it provides for abolition by
the appropriate government in appropriate cases mder section 10
of the Act of 1970*

The only consequence provided in the Acts, where either the

principal employer or labour contractor violates the provisions of
section 9 and 12 respectively, is the penal provisions contained in
sections 23 and 25 of Bonded Labour System (Abolition) Act, 1976*
Therefore, in proceedings under Art. 226 of the Constitution, merely
because contractor or the employer had violated any provision of the
Act or the rules, the court could not issue any writ of mandamous
for deeming the contract labour as having become the employees of
the principal employer.' *34

The children are the national assets and constitute the most
weakest and defenceless class* Under Constitutional mandate it is
■tne bb'^y of every state organ to protect them from exploitation and
moral and material abandonment to develop their personal liberty
with human dignity.

134. See Deena Nath v. National Fertilizer Ltd. AIR. 1992, SC 457.
 - 735

The Supreme Court of India has shown its deep concern for
moral and material development. The Court in this case stressed
upon the need for free and compulsory education to ail children for
their airound development keeping in mind that illiteracy is the
main root cause of p* poverty. Also, this poverty does not allow
their parents to send them to school. The apex court suggested
that government should provide school facilities to the children
of construction workers near their site of project. It should
provide free transportation, free mid day meals, free uniform,
stationery and books at least up to primary school level. Scholar®
ships as incentive to the poorest of the poor family children may
attract them towards schooling. Thus these children may become
part and parcel of main stream of life and their dignity may be
maintained.

It is submitted that though the directions have been imparted

for such facilities but no practical step has yet been taken by the
executive/government for the implementation of such directions. Sven
the drop out of such children is very much. Because they only come
to school once or twice to get scholarship amount as their names
can not be struck off the role of school even due to their regular
absence at least in 1st and 2nd class* They are automatically
promoted to next class* Thus the object of such directions is not
fulfilled.

135* People thion for Democratic Rights v. Union of India.

XUS 1962, SO 1473T ““
 - 736

The Court cautioned against the employment of children below

the age of 14 years in construction work that is, accordingto the
Court, “a hazardous concern11. The Court in this way expanded the
meaning andsoope of the phrase “hazardous employment”.

Then the Pari lament enacted the child labour (Prohibition &
Regulation) Act, 1986 where some employment, occupations end
processes were banned for the employment of children. In this way
the Parliament went one step ahead to prevent the exploitation of
children in various employment/establishments*
The apex court remained always cautious in this regard and
at many occasions filled the vacuun, created in the absence of
Parliamentary legislation, by laying down the guidelines governing
the inter country adoption. ^ Thus the judiciary performed the
legislative role to protect huaan rights.
In She el a Barse1^® the Supreme Court, regarding protection
of children from exploitation in jails, directed, that children
below the age of 16 years be released from jail and be kept in
observation homes* Special Juvenile Courts, for their trial, be
established* manning the Juvenile Court with special judicial
officers having special training and speedy trial of the children.
The Supreme Court gave these good suggestion so that the life and
liberty of such children may be meaningful*
136* hazardous Employment.
137* Laksfaiaikaht, Pande v. Ibion of India. AIR 1984, SC 469*
Bee el so AATto sc i9$7T SC 232.
138 She&La Parse v. Union of India. AIR 1986 SC 1773.
Ifteelajarjg v. ^cretgry^ Xflldren Aid So ci ety, AIR 1987,
 737 *

The Court, through PIL, ^ rightly protected the interest of

the children of prostitutes* Children horn to the prostitutes are
most unwanted elements of our society* The Court observed in this
case that prostitutes do not want children* When children are horn
to them it is inspite of their desire not to rear children* If they
are horn to them, it is the interest of such children and of society
at large that they should become part of it* It is pointed out that
their separation from their mother and mingling up with others may
make them meaningful part of the society* Their segregation from
other school children, hy putting them in separate hostels and
schools may create another class of such children. It will not he
acceptable hy the healthy society. Thus the Court extended f&clli**
ties for children horn to prostitutes.
Vishal deet*^ is another case of its type where the children
are victims of sex exploitation and deserve the attention of law
enforcing authorities. Most of the children are unwilling parti­
cipants and in voluntary victims of compelled circumstances and are
finding no ways to escape and are weeping or waiting throughout.
Speedy and severe legal action, against all the erring persons such
as pimps, brokers and brothel keepers, require to he taken. Court
must also take serious views in this regard. The governments should
evaluate various measures and implement them in right direction.

139- Gaurav Jain v. Union of India. AIR. 1390, SC 292.

140. Vishal Jeet v. Union of India. ADI 1990, SC 1412.
 758

In response to the efforts of the Supreme Court, our Parlia­

ment enacted the Juvenile Justice Act, 1986 to protect the children
from such exploitation and making their life meaningful for them­
selves and society. The idea behind this exercise was to restore
their human dignity. It is hoped that the executive will also
follow the foot steps of their sister-organs*

When the ouiiciary/executive tries to streamline such anti­

social activities, such a mishappenlng takes place that appears to
bring all efforts to zero. But; sincere efforts of executive and
judiciary bare fruits \>&im 12 years old Amaana was saved from the
dutches of sex exploitation of sixty years old Saudi Seikh though
the girl is now safe with his parents at Hyderabad after a long
legal battle fought by some social organisations, yet it has lifted
the curtain from the evil generally prevailing in our so called
civilized society. That problem was tackled fairly and in time
but what about of those questions which are still unanswered in
the light of such hatred and henious scandle. It does not appear
that society and government might have been so serious and
cautious not to allow the repetition of such inwant ed/ixiheal thy
events in future. The questions arose from Ameena's Kand are
not related to any religion, commmity or any particular group but
these all give a clarian call to whole of the society. The Child
marriage and ua suited ( ) marriages scan die are not all due
to foreigners but they take place even in India and not only in
Muslim but also in multiple portion of the society in general >
Though sixty years old Seikh tried to give it a religious colour in
the court of Anna ana’s Nik ah. Also it was added that it was valid/
 759 K*

legal Nik ah made with the consent of the 12 years old girl* it is
beyond doubt that the consent of minor girl has no weight in the
matter of Nik ah. Thus law of the land had its tipper hand and she
was relieved of this burden of Nik ah.
141
In spite of all these laws, Am e anas are still being sold*
They are being tried with the old men. Though the child marriage
is prohibited yet these are being organised oollactively. The
accused always have escape taking benefit of the flaws in the law
and due to their relations with the authorities.

Such types of evils are flourishing in our society due to

poverty, illiteracy and backwardness. These can not be eradicated
only through laws/legislation, though it Claw) has its important
role. It should be implemented effectively. The main/real need
is to awaken public consciousness and to give to it the shape of
social movements. A powerful and revolutionalised social movasnsit
may motivate the society to eradicate this curse. At the same
time, it is worth mentioning that such movement s can not be succ­
essful without the assistance of government.

The tortured journey of Amecaia has left such questions in

the cosmos environment, these will purturb the society and its so
called Thekedars* These questions will remain echoing in the
atmosphere so that Ameena may not become Jesnat of Hararas of
$©ikh.1^2

141. See also fiainlk Tribune. Chandigarh, dated 4-9-93, p. 1

Col. 3 under the heading i Ve Gahri Wind Me Soi Bachieoa Ko
Utha Le Jate The".
142. See “Aaeena Kand se Ubhre-Sawal", the Dainik Tribune, 1592.
 740

It is submitted as a conclusion that there remained a

wide gap between legislative philosophy and its translation into
action. Inspite of sincere and deep concern shown by the judi­
ciary and imparting directions/guidelines to administration, no
praiseworthy result is obtained in this direction. The welfare
legislations are available with us. If there is gap, that is
fulfilled by the judiciary (in the absence of parliamentary
legislation) as custodian of our constitution to protect life
and liberty of the individual. Through its liberal judicial
interpretation, it expanded the ambit and scope of this right
from Maneka and onward, still there is some thing wrong. There
is need to think of that wrong which is not permitting to main­
tain dimity and decency of the workers.

tfe see that mere passing of welfare legislation is by

itself not sufficient, though undoubtedly it is the first step
in right direction. It is also dear that judiciary is playing
significant role on its part assigned to it under constitution.
The most Important is the implementation of these welfare legis­
lation enacted for the benefit of weaker section of the society
in its true spirit to achieve the noble object for which such
legislation is passed. The only machinery left to implement
enactments is the executive. The government’ a sincere attention,
genuine interest and missionary. Mo zeal may help to abolish this
bonded labour system. In this way the justice, social, economic
and political, will be provided to these forgotten species of
the society and any type of forced labour - begar or slavery
 -7M

will be abolished. Because the aim of abolition of slavery was

intended to promote fraternity, socio-economic and political
equality and justice among the downtrodden unprivileged backward
section of society. But that intention of the framers of the
Constitution is not largelly fulfilled. It can not be said that
the change is not taking place, it is, but not with the pace for
total eradication of this evil. We shall have to show confidence
in executive and legislation to seek their assistance and to
invite their .attention.

The following suggestions may be relevant to over come the

problem ♦

1. The Need for Social Commitment

The process of identifi cation and release of Bonded labour-

ers is the process of discovery and transformation of nonbeings
into hunan beings. What is needed for it is determination,
dynamism and sense of social commitment on the part of administra­
tion/executives to wipe out this inhuman practice. The problem
will be hardly overcome in the absence of sympathy of society and
the administration.

2. Participation of So del Action Groups

The participation of such group in eradication of the evil

of bondage must be given social and governmental recognition.
This evil can be operated from grass root level. Political will
may help to follow up the action. Bandhua Mi&ti Morcha and other
groups have played and are playing inspiring role in this regard.

143* Neerja Cnaudhary v. State of M.P., AIR 1984, SC 1099.

 - 742

Non-political groups may be included to reorganise the Vigiign.ce

Committee. The Voluntary orgen i sat i on.s/agencdLes comprising of
men andwomen, dedicated to the cause of emancipation of bonded
labour, will be able to penetrate through secrecy under which
very often bonded labourers are required to work and discover
their existence and help to identify, release and rehabilitate.
They may play dominant role in projecting the problems of the
labourers, in educating them with regard to their statutory rights,
in censuring employer s/masters for any inequalities and injustice
«9

done to them and finally in helping them to organise themselves

so that they can act as pressure group to successfully secure
l44
their rights as to minimum wages and reasonable working conditions.
They may awaken the masses from culture of silence and dependence
and conscientise them so that they may live with dignity and honour.
Government of India should ensure proper implementation of provi­
sions of Bonded Labour By stem (Abolition) Act, 1976.

2. Constant Check and Supervision

•Constailt check and supervision - over the activities of the

officers charged with the task of security, liquidation of their
debt, identification, release and rehabilitation of bonded labour­
ers (as desired in Bandhua Mukti Morcha) is a good suggestion. The
officers should be properly trained and sensitised so that they
may feel a sense of involvement with misery and sufferings of the
poor and carry out their functions. National Commission on Bonded
Labour and Child with Chairman and member acquinted with the

144, Veer Singh, “Capitalist Farm Sector and Migrant Labour in

Punjab J A Socio Legal Study”, Journal of xLX, Vol. 26,
(January-March l, 1986), p. 92.
 - 743

provisions of social security legislation and a state council

establishment for check and supervision may be established. These
establishments should be accountable for their working to the
nation through Parliament and Assemblies.

4. Intensive survey

Intensive survey through volmtary agencies with Government

machinery (powerful Vigilance Committees) for identification of
bonded labour, should be started as a fresh move. The door to door
country vide survey of area, which have been traditionally prone
to this system of bondage debt, should be under taken by the social
action groups operating in that area. The correct and more practi­
cal approach would be to hold a summary trial immediately on
receipt of report from the concerned agencies so that the process
145
of identification and release may go side by side. Such a
burden may also lie on the council for Advancement of Peoples*
Action for Rural Technology-* - rt CAP ART "

5* Establishment of Wobile Courts/Tribunals at Centre and State

Level. _____ _ __________________

We are to make the poor realise that the courts have now a
days been the court of Justice and the courts of poor. The econo­
mic inequality now can be no hurdle at least in filing writ peti­
tion for the liberation of these towntrodden and to provide new
ethos in the just icing system.

14§„ An evaluation report of the programme. Evaluation

organisation on Rehabilitation of Bonded Labourers.
See the Indian Workers* December 23* 1985, p. 7,
Labour Policy in the 7th Plan*
 - 7kk

Establishment of Mobile courts in the affected areas may be

effective step to overcome the evil. The members of the court be
provided with ample power to award the guilty severe punishment
without delay. The members of the M. Court may be person with spe»
eialization in labour laws so that minor offences may be tried at
the spot.

6# Workers Education

To make than useful citizens* the Central Board of Workers

-Education may be used as an instrument for imparting education to
the labourers either in stone quarries, agriculture or some where
else. They may be organised in this way against their exploitation
so as not to succumb to pressure tactics. Access to justice, free­
dom and equal opportunity are only possible through education. They
will have to be told that law is on their side. The mass education
may aware them of it. Thus a team of workers amongst them may be
entrusted with the job of acquainting the ignorant people with
legal provisions of the Act, passed from time to time for their
welfare and benefits. They should be made conscious of their basic
rights and to maintain their dignity and decency in life. Adult
literacy/education programme may also be aright step in this
direction. The out look of Swami Vivekananda is appreciable.
According to him, “So long as the millions live in danger Hid
ignorance, I hope every men a traitor who having been educated at
their expense pays not the least heed to them.

146. Binoy, K. Roy, Socio Political View of Vivekanand,

^People*s Publishing House, W. Delhi).
 - 745 -

7» Effective Legal Aid Schemes and Clinics t may be run by senior

law students and advocates with the aid and advice of law teachers*
Faculty of Law* W.D. University, Rohtak* is playing ah important
and sincere role in this direction for about 8 years and results
are very effective. Visits to neighbouring country-sides* legal
aid camps, legal awareness programmes* workshops are being organi­
sed under the guidance of Haryana State level legal aid and advice
Committee® Lok Adalats are generally organised for this purpose®

In many cases free legal advice is being tendered by faculty

of Law* M.D* University, Rohtak to those who coma to seek it® Other
Universities also may take up this scheme for the welfare of the
society specially for the weaker sections of the society* the
community. Social organisations and Trade Unions may also 3oin
hands to fight for the cause® Thus the free legal aid and advice
committees may sincerely come out for the services of masses. Heady
with low income groups* Scheduled Castes and Scheduled Tribes and
women are provided with competent and qualified advocate* at the
cost of State exchequer. Here it may be submitted that fees of
these advocates be raised to a certain leva! otherwise they will
try to have escape to plead the cases of these masses. At the
same time these advocates also must have some sense of social
service if they are asked to plead some cases on low fees. As
we are born in this society and we have some obligation to b© ful­
filled towards it.

8. Employment Centre s may tackle the problem in practical* These

centres be established in every state to provide them permanent
 746

job with minimua wages and equal pay for equal work* The right to
work may thus be made a reality to all those released bonded labour-
-ers. They may be provided employment in Centre and State Services
according to their capacity* If any bonded labour dies during
employment, his legal heir may be provided with job.

9# Social Reformer a* Watch Dog may protect the interest of the

bonded labourers so that they may not be bewildered. The institu*
tion of social reformers must be registered under Registration of
Societies Act. Money lenders, who are still carrying on the busi­
ness without the prior permission of the authority, may be searched
out by these reformers and cases may be filed against them to
prosecute then* Rigorous implementation of penal provision will
improve the position and periodical inspection will being better
results*

10. Role of Ruling; Political Elite in the era of materialistic

world, which controls the economic and political power, may be
worth mentioning. They should stand behind the administration with
full commitment to social equality and emancipation of the deprived
section. This elite class may help the hopeless and helpless
species to provide then with basic amenities - drinking water,
sewerage* electricity in their dwelling houses on priority and
t concessional rates*
11* Welfare Funds Central and State Government may raise and
allocate more funds specially for the welfare of the bonded labour-
«ers to overcome their, main and basic problems of ignorance, illi®
-teracy, poverty and other socio-economic compulsions* It is
 - 747

submitted that funds released for the rehabilitation of these bonded

labourers should be raised. Care should be taken that the find goes
in proper hands and not in bottom pit. Sincerity, honesty and dedi­
cation can add to the success of this thought.

12. Demonstration and Propaganda through Radio, Newspapers and T. V.

may be given wide publicity regarding this social evil to attract
the attention of the society#

Indian Ratification of I.L.O's Forced Labour Convention J

The Forced Labour Convention 1930 (No. 29) and Forced Labour
Recommendation No. (36) were accepted by Indian Gov eminent in 1954.

It is submitted that the convention on abolition of Forced

Labour (No. 10) 1957, which totally prohibits Compulsory labour has
not been ratified by our Government. ' The Rights of child
convention was adopted in 1989 and India ratified it on December 11,
1992. It 3hows nothing but reluct an oy to accede to it. i4s

Though it may be said that Article 23 of the Indian Consti*.

tution prohibits forced labour* or voluntary labour and so it is an
indirect constitutional compliance ox the above convention# However,
Article 23(2) empowers the State Government to impose compulsory
labour for public purpose like flood and other national calamities.
The said convention contains no such exemption whether permanent or
temporary. India, therefore, has not ratified the said convention.

147. An and K* Dubey, Social Justice and Bonded Force in India#

(PWP, Jaipur, 1989), p# 185.
148. Main Stream. Vol# XXXI No# 47 (Saturday October 2, 1993)
p. 26.
 • 74 8 -

The rights of child, convention was adopted by UJ. In 1989 and

India ratified it on December 11, 1992.

The instrument ratified by India contains the declaration

that the child has to be protected from exploitation of all forms,
including economic exploitation and from performing any work that
is likely to be hazardous or interiors with the child's education
or is harmful to the child's health or, physical, mental, spiritual
moral or social development. Legislative, administrative, social
and educational measures are to be taken to ensure the implementa-
1 60
tion of Article 32 of the convention oh;Rights of the child. ^

The participant states shall 4h particular provide for mini*

mum age for admission to employment, regulation of conditions of /"
employment, and appropriate penalties or other sanction to ensure
the effective enforcement of the present Article i»e. Article 32.^

Agnivesh, however, observed that India was reluctant

to accseed to It and it was international pressure which forced India
to do;tgo. Having ratified it and having made some speeches here
and there, beyond that no concrete tangible effective step has been
162
taken in side the country to implement or enforce the same.

l49* "Indlas Accession to the Convention on the Rights of the

Child", Main Stream, Vol. XXXI, No. 4? (Saturday October 2,
1993) ,p. 19.
150. See "India's Accession to the Convention on the rights of the
Child" Main Stream. Vol. XXXI, No. 47 (Saturday October 2,
1993}* p. 19.
151. Ibid.
152. Swam I Agnivesh, “Ratification of Convention Mere Window
Dressing", Main Stream, Vol.XXXI, No. 47 (Saturday October 2,
1993), p. 23.
 749

Regarding the Government of India1 a position on child

labour at various international or regional gatherings held in
recent past,^^ Sh. J.N. Dixit,Foreign Secretary, Government of
154
India, supporting the Government stated'the following s At the
Seventh SAARC Summit at Dhaka in April 1993, the Heads of States or
Governments reaffirmed their commitment to accord the highest
priority to child survival, protection and development.

The Child lebouv issue was not discussed at the Harare

Summit, 1991*
In World Conference on Hunan Rights in Vienna in Suamer 1993,
Government of India very strongly supported the relevant sections of
Vienna Declaration relating to rights of child. However, the Vienna
Declaration calls for the ratification of the convention on the
Rights of child by 1995, which India has already done.

The world conference also called for international co­

operation to address acute problems of children. India played a
leading role in evolving consensus on these points.

According to Sh. J.N. Dixit, the Government are also

implementing an ILQ programme, "Internation Programme for the
elimination of child Labour" (IPEC). The programme aims at comple­
menting the government resources and efforts to encourage, promote
and support action oriented programme by non governmental organisa­
tions and other institutions.

153. Common Wealth Summit at Harare in 1991, The SAARC Summit in

April 1993, D»N. Conference on Human Rights in Vienna in
Summer 1993),
154. In interview when a set of question was presented to him by Main
Stream - J*N. Dixit* "Government Promoting Rights to the Child",
. Main Stream, V0i. XXXJ, No. 47 (Saturday October 2, 1993).
 750 -

Relating to the question, that Government of India only

responded to pressure from outside (specially Tom Harkins' Bill in
U.3. Congress against import of goods involving child labour) to
promote and protect rights of child, Mr. Secretary (Sh.J.N. Dixit)
asserted that India is doing so as part of our indigenous policy
155
rather than international pressure.

United Nations Children's Fund (UNICEF) is specially meant

for promoting respect for the rights of the child to survival,
protection, development and participation. The World conference on
Human Rights reiterating the principles of "First call for children1’
underlines the importance of efforts of UNICEF in this direction.
This conference (World conference) supports all measures by the 3bc
U.N. and its specialised agencies to ensure the effective protection
and promotion of human rights of girl child. The conference gives
emphasis to recognise the importance of the enjoyment of highest
standard of physical and mental health through out their life span.

Many Non-governmental Organisations (NGO) have been active

in champroniag the cause of Bonded Labour. Swami Agnivesh heading
the Bandhua Mukti Morcha, calls the Ratification of Convention mere
Window dressing. The problem of bonded labour is continuing. Accord­
ing to Swamiji though they are still fighting a battle may be a
losing battle, but right now they are not at all satisfied. He
was surprised with the statement of Labour Minister, Government of
India that according to the law the children could not be considered

155. Ibid.
156. World Conference on Hunan Rights, Mainstream, VqI. XXXI,
No. 47 (Saturday October 2, 1993), pp. 22,23.*
157» Swami Agnivesh, "Ratification of Convention Mere Window
Dressing", Main Stream. Vol. XXXI, No. 47 (Saturday Oct., 2,
1993), p. 231
 751

to be bonded because the element of debtedness under the law of

evidence had not been established beyond doubt# Regarding care­
less attitude of the Indian Government to enforce labour law1^
Swami Agnivesh narrated as follows • “We place the whole matter
before the Working Group on Contemporary. Forms of slavery in
Geneva and stated that inspite of deterrent legislation, the Govern­
ment of India does not have the political will to enforce its laws#
Subsequently, the Sub-Committee on Human Rights accepted so me of
our plea and recommended some action to the Government of India, but
nothing came out of these recommendations# But we continued our
efforts. In the presence of eminent journalists, national and inter®
national andwith the help of local authorities i.e. District
Magistrate, Sub Divisional Magistrate and the Police, we got the
children rescued from harrowing conditions of exploitation in carpet
belt in Mirazpur, Varan si, Baderi.

Regarding the question that have they gone back to the

same bondage after their release, Swam id i replied, “we make sure
that each one of them gets a release certificate on the same cay by
the authorities and they also get their due rehabilitation which is
around Rs. 6250/- worth of income generating assests# These assists
in the form of Rickshaw, or amplifier or loudspeaker system or what-

159. Ibid p. 24. That was definitely a ridicULous statement.

Because the Supreme Court of India, in the earlier judgement
of 1995, had unanimously held that any one who was being
denied minimus wage in the country should be considered to
be a bonded labour. The judgement of the Supreme Court from
its Divisional Bench are law up to themselves.
159. Ibid in interview with Swami Agnivesh on the
worsening plight of child labour in India.
 752 -

-ever are made over to the parents and it increases their income.
The children are then sent to school and they live happily with their
ifto
par ©its. Thus they have not lapsed back into bondage.

Replying regarding present state of children in bondage in

India, he stated that there are altogether a minimum 55 million
children in the country who are in survitude, which means the condi­
tion of each of them is one of bonded child labour where the
number of hours of work is more than 12 hours invariably, sometimes
as high as 18 hours da day.

He pointed out that agriculture is the worst affected area

which is the most unorganised and subjected to the most inhumane
exploitation. The bounded child labour is also frequently available
in stone quarries, brick-kiln, bid! making industry and glass and
bangles, match box, brass, carpets, garments. Thus the total
incidence of child labour is on the rise. Because this labour is
the cheapest form of human labour. In spite of the fact that India
signed ILQ convention against forced labour and yet bonded labour
has been flourishing. Regarding the role played by the Indian
Government in International Hunan Rights Convention in Viena in
June 1995, Sh. Agnivesh expressed disappointment that there was
~ absolutely no mention of child labour* and no where Govern­
ment touched upon human rights and in return the Finance Minister,
in front of all the leading N.G.O's andhis own delegation, said
well Bwamiji, you should, not expect India, which is a developing

160. Ibid.
161 • Ibid p. 27•
 753 -

country, a poor country to adopt andimplement the norms as propoun-

-ded by the developed country, the industrialized country* Swamiji
reacted by saying, "you are making wrong analysis, it is child
labour which is responsible for country* s poverty and not vice-versa.
Secondly he (Swami) said, "If you maintain that we are a poor country
and, therefore child labour will continue to be reality with us then
the Government of India wants to backtrack on all these conventions
and clauses". To which he had no reply.

Swami Agnivesh made the following suggestions to overcome

the problem of bondage s

1. He maintained that information is power. In a country with

highest percentage of illeteracy, the written words have no meaning
The best thing is to spread awareness through Radio, T. V. and also
posters and wall writings through out the country on a massive scale.
Begin with saying an amphatic 'No* to any type of child labour. But
even this was not done by now.
2. I'o repose trust in Won Governmental Organisation (N.G.Q)
whenever the WGO's are forthcoming with the list of bonded labourer,
the Government should not play tardy and dismiss them as non authen­
tic andso on.
3. Government to be responsive towards the findings of the
Supreme Court. The Government machinery must not put obstacles in
teas way of functioning of the Commissions appointed by the Supreme
Court. The reports given by them are not seriously look into*
4* Free compulsory Education to children below the age of 14
years * by taking the children on and off the labour market and
effectively rehabilitating them by giving them equal opportunity
for development through free and compulsory education with some
economic incentives for the families below the poverty lines.
All this will help even to free the bonded girls child of bondage.

5. Steps taken by Government are all cosmetic exercise. The

real jeal and jeast is essential in this regard.

6. Remove discrimination. It will assist the female labour

to get rid of exploitation.

Socio-rellgiou&-cultural attitude is the main reason why

nothing related to these vulnerable section of the society, is
changing.
While evaluating what is done by Centre and State Govern­
ments in this particular field, Swami Agnivesh said that whatever
little has been done, has created more awareness at the level of
the unorganised labour and rural child labour also at the level
of the Non Governmental Organisation and the government - we must
continue and carry out a sustained campaign to bring about total
end of such labour.

The view of the Government that child labour should be

paid the same wage as the adult, is nothing but to legitimise the
existing child labour system. When the adult themselves are not
getting any minimum wage in the country « that is those belonging
to the unorganised labour « what can be expected of children.

162. See also Vineeta Snanker, “The Girl Child in India - An over
view" Main Stream Vol. XXXI, No. 17(Saturday, March 6# 1995)
P* 17-
Leelamma Devasia, x V.V. Devasia, Girl Child in India,
(Ashisn Publishing House, New Delhi, 1991).
165. Swamin Agnivesh, “Ratification of Convention Mere Window
Dressing , Main Stream, Vol. XXXI, No. 47 (Saturday October, 2
1995), p. 28.
164. Ibid.
 - 755

Not only private enterprises but also public undertakings

are involved in such sinister activity of exploitation of bonded
labour. Unless there is total ban on this evil of bonded labour
they can not enjoy whole somefood, clean drinking water and fresh

In addition to above, the following more suggestions must

also be looked into •

i» Psychological rehabilitation must go side by side the

physical and economic rehabilitation of bonded labour
through a process of assurance.
ii. Freed labourers be given full economic support to remove
the danger of hunger and relapse into bondage.
iii. It must be ensured that all the benefits, meant for these
poor, are reaching them - otherwise it will be futile
exercise on the part of the Government. Honest adminis­
tration may play useful role for this purpose.
iv. The following programmes, if evolved by the Government, may
be proved to be effective to attack at bonded labour;
a) Allotment of house sites,
bi Agricultural land allotment.
c> Provisions for credit facilities,
d) Training for acquiring new skills.
e> Promoting arts and crafts,
fi Animal husbandry.
g) Horticulture.
h) Piggery, Fisheries, rabitary.
i> Tank digging.
j) Collection and processing minor forest produce.
k> Supply of essential commodities at low rates with
invention to assist them.
1) Education of their children and protection of their
rights.
m> Allotment of surplus land to the liberated bonded
1 abo ur er s.
n> Seeds, fertilizers, irrigation facilities on subsi­
dised on priority basis.
o) Small Scale industrial training and facilities.
p) Provision for self employment.
q> kisan nurseries.
r) Fruit plants distribution.

165* P*N. Shagwati, "Law, Justice and Under Privileged" in Jants.

Vol. XXXIV, No. 10m June 3, 1984, p* 8.
 - 756 -

v. It requires coordination between various State and Centre

sponsored scheme for a qualitative rehabilitation for the
bonded labourers*
vi. Loan facilities may be provided to these released bonded
labour through cooperative Societies in rural andurban
areas* Secretary of such societies generally operate
such activities. Fertilizers at subsidised rates are
also provided through these mini banks (Cooperative
Societies) to the small farmers.

It is submitted that such types of facilities, for loan

and other purposes should only be meant for the poor. These should
not be grabd by well to do persons of the society for their vested
interest. In this way the bonded labourers, if supported morally
and economically, may acquire a social status to lead a life of
dignity and decency.

Role of i&tra Judicial Bodies

The success of these programmes depends mainly upon fair

identification of these bonded labourers. Undeserving families
manage to get assistance and result is that the needy are deprived
of the Government help. This tendency needs to be checked to
ensure that the fruits of the programmes reach the people for whom
they are meant. Village Panchayat, Biradari (TWT9 ) Panchayat,
Voluntary agencies and active social groups may play key role to
watch and ward the interest of these labourers. They may be given
powers to punish the violators of law. Rigorous punishment and
heavy fines may create terror in the minds of the problem creators.
The above mentioned bodies should be made answerable to ensure
proper implementation of the provisions of welfare acts.

Moreover there should be suitable amendment in Represen­

tation of People's Act to include a provision to the effect that
 - 757 -

the patronisers of this evil should be disqualified from contesting

any election that may be of local bodies/assembly or Parliament.

Above all we need self sacrificing men with muscles of iron

and nerves of steal, with a heart of oceanic feelings for the amelio­
ration of the sufferings of these helpless poor. The success of
programme depends not only on sound structure and efficient organi­
sation but also on the quality of bureaucracy. The Government
machinery engaged in the execution of the welfare provisions requires
its gearing from top to bottom. The lowest of the low be listed to
advance benefits under the Acts.

Workers Participation

The attempt may be made to involve people at the stage

of planning and decision making. An attitude of self help may be
developed in these needy people. There will be more chances of
improvement when the beneficiaries are fully involved in the pro­
gramme planning, its execution and evaluation. The present mode of
planning will have to be replaced by one that concentrates on meet­
ing the basic needs of the poorest of the poor that are felt and
identif ied by the needy and not as in the case now, by central level
planners and bireaucrats. Decentralisation of planning, state power
and authority are a precondition for the success of this programme/
scheme, because it can only go ahead on the basis of the wides
possible mobilisation and participation of people in general.

heed for Change in Mental Outlook J Informal education for adult in

particular to bring a change in their mental outlook is the need of
the hour. Mutual coordination among government machinery and
 758

compulsory education with necessary incentive to make the labourers

send their children to school require encouragement.

Mutual Coordination • among Government machinery* leadership of

voluntary organisations and people's enthusiasm for development
activities in the fields of agriculture, health, unemployment and
banking will have to be initiated simultaneously. Com uni cat inn
is a pre-requisite for the effective working for the eradication
of such evils. Availability of funds, feasibility of schemes and
other allied issues require careful study and planning. Evaluation
should be entrusted to social scientists who could conduct unbiased
research and submit reports to the Government. Evaluation by Govern­
ment official has limitations and problems, the most important being
their inability to express frank opinion if not pall at able to the
government. Employment opportunities can easily improve the stand-
-ard of the life of these down trodden. Thus they will bsable to
stand on their own feet as early as possible.

Though the progress in this regard is not satisfactory,

still we must have somehopes. Because golden age is the age in
which we are living i.e. the present age when and where we have
the timeto do something. Findings of faults will not solve the
problem. There are miles to go and promises to keep to break their
chain of bondage. Awake, arise from hypnotism of weakness of
slavery, hone is really weak. The soul is infinite, omni-potent
and omnisclent-stand up, assest yourself, proclaim the God within
you, do not deny Him, Power will come, glory will come, purity
will come and every thing, that is excellent, will come when this
 - 759 -

166
sleeping souk is aroused to self conscious activity. Then exce~
Hence end equality will cooperate fruitfully. Gandhiji snatched
freedom from outsiders, J.P. from insiders, why can not from yours
own, though it requires sacrifice, honest thinking and dedicated
actings.

According to Kurt Waldheim,ExSecretary General, U.N.O., much

remains to done. The highest goal, set in the International Bill
of Rights, can only be achieved when its principles and stamards are
167
fully recogaised in law and observed in practice.

Thus collective efforts from arl sides may improve their

lot and may make future a living proof of harmonious relationship
among all the organs of the State in their functional approach
towards the protection of theirlife and liberty and a life of
decency and human dignity may be led.

If all these suggestions are taken into consideration,

problemsof Bonded Labourers will be settled. They will be relieved
of serfdom and slavery. Their exploitation will be minimised.
Middlemen (Dalai) will be brought to tt ? books and punished. Curse,
poverty and starvation will be eliminated. There shall be healthy
atmosphere in their surroundings so that they may not be compelled
in 'Modern Bondage*. Because if it all does not happen, it is
beyond imagination to think of these weak bonded labourers to
revolt against their compulsion as this evil is increasing day by
day and law has failed to have a check on this sinister evil.

166* B.K. Roy, Soclo Political views of ^ivekanand - (Peoples

Publishing House, W.Delhi), pp.50-31. ~
167. Kurt Waldheim, Secretary General, 'U.N.O. in the Foreword of
the Book - XXX Anniversary - the United Nations and Hunan
Rights. (United. Nation1 s Hew iork, "r
 - 760 -

Mere slogans, directions, law, welfare legislations,

government machinery, organisations, conventions, conferences are
not effectively going to change the fate of these ilfated, and
ignorant illiterate people unless they are unanimously prepared to
raise their own voice with out any fear*. Welfare Legislation along
with Bonded Labour By stem (Abolition) Act, 1976 and Judicial Inter­
pretation can not be proved effective and fruitful till their (of
bonded labourers) echo reaches those authorities to beware them for
their rights. Preamble of our Constitution is reminding us in bold
capitals i• e. "we the people of India" have pledged to secure to all
Justice, equality, liberty, fraternity without any descrimination on
the basis of sex, caste and creed. Let us Join hands and minds to
ensure their decent human exitence to bring them at part with us
to make them part and parcel of civilised society. Respect for Law
and Justice can play the significant role and most essential thing
will be easy and equal access to Justice. Thus the dream, of our
forefathers,, enshrined in our Constitution, may be realised. Dignity
and decency of every individual may be maintained.

*
**#
*****
*******