Q: What is bonded labour?

Ans: Forced labour is bonded labour in general terms.

Q: How do we define it in legal terms?

Ans: To understand it in legal context, we should recall two cases dealing with bonded labour. Decided by the Supreme Court of India. They are as follows:-

1. In People's Union for Democratic Rights and others Vs. Union of India and others [1982 II LLJ 454 SC (1982) 3 SCC 235] otherwise referred to as the Asiad Workers Case, the Supreme Court said, "We are, therefore, of the view that when a person provides labour of service to another for remuneration which is lees than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour" under Article 23 (of the Constitution of India)."

2. In Bandhua Mukti Morcha Vs. Union of India and others [1984 3 SCC 161], the Supreme Court held "Therefore, whenever it is shown that the labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is, therefore, a bonded labour. This presumption may be rebutted by the employer and also by the State Government if it so chooses but unless and until satisfactory material is provided for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of provisions of the Act. The State Government cannot be permitted to repudiate its obligation to identify, release and rehabilitate the bonded labourers on the plea that though the concerned labourers may be providing forced labour, the State Government does not owe any obligation to them unless and until they show in an appropriate legal proceeding conducted according to the rules of adversary system of justice, that they are bonded labourers."

The above two judgments of the Supreme Court of India lay down the law, in terms of Article 141 of the Constitution of India, to the effect that:-

(a) Where a person gets a remuneration which is less than the current notified minimum wage under the Minimum Wages Act, 1984 for the particular scheduled employment, the labour or service provided by that person clearly falls within the ambit of the term 'forced labour under Article 23 of the Constitution, and

(b) Where a labourer is made to provide forced labour, he is presumed to be a bonded labourer in terms of the Bonded Labour System (Abolition) Act. 1976.

INDIAN CONDITIONS

Q: What are the ground conditions in India?

Ans: It is well known that in India, employment in the unorganized sectors such as agriculture, construction, brick kilns, beedi rolling, agarabtti, handicrafts, leathers, repair shops, and so on, which would account for the bulk of, it not, the entire unorganized workers of the country, have been added to the schedule to the Minimum Wages Act by the Central and State Government and minimum rates of wages have been fixed/revised in respect to employment under the Act. It is equally well known that it is seldom that even the notified rates of wages, abysmally low as these generally are, accrue to the workmen and what is worse, women workers get even lesser wages than men workers. From this, it is agreed on the basis of the Asiad Workers judgment, that all the workers in the unorganized sectors, barring a few, are forced labour' in so far as they do not get the minimum wages as notified by the appropriate Government. From this, it is an easy step to the next stage of the argument, based on the Bandhua Mukti Morcha judgment that all these 'forced labour' are 'bonded labourers'. Thus, even if we leave out the self employment from the total work force, the total number of bonded labour in the country will run into millions considering that the number of agricultural labour itself is about 75 millions. A far cry from the nearly quarter of a million bonded labour that Government statistics put, out of which all but a couple of thousands or so have been identified, released and rehabilitated under the Bonded Labour System (Abolition) Act, 1976 !

Ans: The factors are the handicaps of :

(i) Absence of freedom to choose one's employment.

(ii) Denial of freedom to relinquish one's employment whenever desired.

(iii) Debt bondage and

(iv) Consequential nominal or no wage payment.

Q: Will you please elaborate on these factors?

Ans: Taking the first of the four viz, absence of freedom to choose one's employment, it will not be disputed that in our country only very few have that kind of freedom, and such option or choice is generally confined to the extremely well qualified and, therefore, at the upper echelon of jobs. The ordinary run of working men and women, most of whom are unskilled or semiskilled will have to make do with whatever job that they are able to get. It is this absence of choice that is emphasized in the Asiad Workers Judgment in the following words: "Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary, but it may, in reality, be involuntary, because while entering into the contract, the employee by reason of his economically helpless condition, may have been faced with Hobsons choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a case to the terms as per contract and to compel him to serve the employer even through he may not wish to do so. That would aggravate the inequality and injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of of the poor helpless employee by the economically powerful employer. Article 23, therefore, says that no one shall be forced to provide labour or service against his will, even though it be under a contract of service……

".It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive……; 'force' which would make such a labour or service 'forced labour' may arise in several ways….. Any factor which deprives a person of a choice or alternative and compels him to adopt one particular course of action may properly be regarded as 'force' and if labour or service is compelled as a result of such 'force' it would be 'forced labour'…. There is no reason why the world 'forced' should be read in a restricted manner so as to be confined only to physical or legal 'force.."

The above extracts from the Asiad Workers judgment leave no doubt about non-payment of notified minimum rates of wages under the Minimum Wages Act, 1948 being 'forced labour' under Article 23 of the Constitution of India.

Q: How shall we explain the second of the criteria, relating to denial of freedom to relinquish one's employment whenever desired?

Ans: In the Bandhua Mukti Morcha Case, this point about absence of freedom of movement was not disputed by the Government of Haryana, as could be seen from the following sentence in the judgment. "It was not enough, contended the Learned Additional Solicitor General (on behalf of the State of Haryana), for the petitioner merely to show that the workmen were providing forced laboour in that they were not allowed to leave the premises of the establishment, but it was further necessary to show that they were working under the bonded labour system" (emphasis added) While in the particular facts of the case, this absence or freedom to move was not disputed, it may be too much to extend it to all cases of employment in the scheduled employment under the MW Act and to presume that the workers have no freedom of movement. Apart from home-based workers who are covered under the MW Act and who by definition, are working from their homes or at least a place not under the control of the employer, there are workers in the scheduled employments where such a situation cannot be presumed. In fact, one of the provisions demanded to be a part of the proposed central law on agricultural is that a worker will have the right of demanding employment from an employer for whom he had worked in the previous agricultural season. The Kerala Law already contains such a provision. Similarly, in the construction industry, there is a demand for regulation of employment through Tripartite Construction Labour Boards, as the current system results in the workers having to work under different employers (contractors) for short durations. The same would be the position in other small establishment, repair shops and so on. One may not be wrong in assuming that while failure to pay notified minimum rates of wages may be construed in terms of Asiad Workers judgment, to be tantamount to forced labour, the second presumption in the Bandhua Mukti Morcha Judgment namely" Therefore, whenever it is shown that a labourer is made to provide forced labour, the Court could raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is, therefore, a bonded labour" is more difficult to be accepted as a rule of thumb, in respect of all workers covered by the Minimum Wages Act who are not in receipt of notified minimum rates of wages. May be, workers may themselves not even be described as bonded labourers, not merely on grounds of prestige but for the more practical reason that they had not received any advance from the employers.

Q: What led to the promulgation in 1975 of the Ordinance which subsequently got enacted as the Bonded labour System (Abolition) Act, 1976?

Ans: Successive reports of the Commissioners for Scheduled Castes and Scheduled Tribes had highlighted the problem of forced labour and bondage in respect of specific communities and the list of forms of forced labour indicated in the Section 2 (b) of the Act has been mainly drawn from these reports. Also, the first para of the Statement of Objects and Reasons is relevant to be noted in this context: "There still exists in different parts of the country a system of usury under which the debtor or his descendants or dependants have to work for the creditor without reasonable wages or no wages in order to extinguish the debt. At times, several generations work under bondage for the repayment of a paltry sum which had been taken by some remote ancestor. The interest rates are exorbitant and such bondage cannot be interpreted as the result of any legitimate contract or agreement….? Thus, the system of bonded labour envisaged under the law would appear to be a lot more restricted than coverage under the Minimum Wages Act; hereditary liability is also one of the disgusting and inhuman aspects of bonded labour under the law and that is the reason why expressions like "lineal ascendants or descendants" occur in sub clause (i) and (iv) of sub section (g) of section 2 of the Act. Also, clause (ii) and clause (v) of section 2 (g) of the Act, referring to "any customary or social obligation" and "birth in any particular caste or community would also be indicative of a more restricted coverage.

These aspects must have been in the mind of the Supreme Court and these must have been the reasons why the court merely stated that it "could raise a presumption". This is in contrast to the categoric decision in the Asiad Workers case about forced labour. Of course, as the Court has said, it is for the employer and the Government to rebut the presumption, rather than for the workmen to establish that they are bonded labourers. The Act itself puts the onus of proof on the employer. What needs to be clarified here is that various handicaps or forms of bondage as given in the definitional clause of the Act are not inclusive. Any one form is sufficient to form a judgment.

In the light of the above discussion, should the balance of consideration lie in extending the net wide and roping in as bonded labourers, all those workers who do not receive the notified Minimum Wage, can there be a chauvinistic reason that one does not want in the 51st year of our Republic to appear to the world as a country in which almost half the workforce, other then the self-employed, are "bonded labourers".?

Q: Can we distinguish between forced labour and bonded labour in more specific terms?

Ans: The reference must be made to forced labour and not about bonded labour in the context of ILO Convention 29 and Convention 105; we have ratified Conventions relate to 'forced labour'. Convention 29 which is cited as Forced Labour Convention 1930, defines, in Article 2 (1) of the Convention, the term 'forced or compulsory labour' to mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily; Art 2 (2) excludes from the above definition a variety of situations. Convention 1957 relates to abolition of certain forms of forced and compulsory labour, this Convention is not relevant to our current discussion.

Coming back to Convention 29, the phrase "work or service.. and for which the said person has not offered having voluntarily" calls for comment. The Asiad Workers judgment makes a reference to these two Conventions in the following words: "It is interesting to find that as far back as 1930, long before the Universal Declaration of Human Rights came into being International Labour Organisation adopted Convention No.29 laying down that every member of the International Labour Organisation which ratifies this Convention shall "suppress the use of forced or compulsory labour in all its forms" and this prohibition was elaborated in Convention No. 105 adopted by the International Labour Organisation in 1957. The words "forced or compulsory labour" in Convention No.29 had of course a limited meaning but that was on account of the restricted definition of these words given in Article 2 of the Convention…." (emphasis added).

Even if the words forced or compulsory labour in Convention 29 had a limited meaning as stated by the Supreme Court, the definition is still relevant. The following expression occurring in the definition "and for which the said person has not offered himself voluntarily" if read in the context of the following extract from the Asiad Workers judgment, namely "Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may in reality be involuntary…" can lead to a controversy at least with the pundits of International Labour Office who may cite this as a violation of ratified Convention. It may of course, be argued that the definition on Convention 29 requires, as evidenced by the use of the word 'and' and not 'or'; the simultaneous satisfaction of both the parts of the definition, namely, work or service which is exacted from any person under the menace or nay penalty and for which the said person has not offered himself voluntarily. Even so, a debate is likely to be on, particularly if India is thinking of ratifying it.