Introduction

The phenomenon of bonded labour is a “vicious circle” where each factor is responsible for further subjugation and apathy of the bonded labourers. The first part of the chain forming the vicious circle is the survival capabilities of this system. It is a relic of colonial and feudal system, which is still continuing. This relic is deeply rooted in the social customs and traditions, treating it as a normal practice. This results in the creation of a “hierarchical pattern” of society forming unequal classes in terms of superiority and inferiority. The so-called higher classes then commit all sorts of atrocities upon the considered lower classes. The system of bonded labour is an outcome of certain categories of indebtedness which have been prevailing for a long time involving certain economically, exploited, helpless and weaker sections of the society. The bonded or forced labour system was known by different names in different parts of the country like Begar, Sagri or Hali, Jeetham etc. The problem of bonded labour was closely linked to the broader socioeconomic problems of surplus labour, unemployment/under-employment, inequitable distribution of land and assets, low wages, distress migration, social customs etc.

The issue of ‘bonded labour’ came to the forefront as a national issue, when it was included in the old 20-Point Programme in 1975. It was the 5th point of the Programme which stated that “bonded labour, wherever it exists will be declared illegal.” To implement this, Bonded Labour System (Abolition) Ordinance was promulgated. Which was later on replaced by the Bonded Labour System (Abolition) Act, 1976. It freed unilaterally all the bonded labourers from bondage with simultaneous liquidation of their debts.

Concepts of bonded labor system

• Forced Labour Convention, 1930 (No. 29) [Article 2(i)] —The term forced or compulsory labour shall 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.

• Universal Declaration of Human Rights —On December 10, 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. Article 4 says: “No one shall be held in slavery or servitude; slavery and slave trade shall be prohibited in all their forms.”

• UN Supplementary Convention on the Abolition of Slavery (1956) — Under this Convention debt bondage is defined as “the status or condition arising from a pledge by a debtor of his personal service or those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined”.

• As per I.L.O. Report on Stopping Forced Labour (2001) — The term (Bonded Labour) refers to a worker who rendered service under condition of bondage arising from economic consideration, notably indebtedness through a loan or an advance. Where debt is the root cause of bondage, the implication is that the worker (or dependents or heirs) is tied to a particular creditor for a specified or unspecified period until the loan is repaid.

• As per the Bonded Labour System (Abolition) Act, 1976:

Ø      “bonded labour” means any labour or service rendered under the bonded labour system-Section 2 (e).

Ø      “bonded labourer” means a labourer who incurs, or has, or is presumed to have incurred a bonded debt-Section 2(f).

Ø      “bonded labour system” means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that he would-

i.        render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefit of the creditor, for a specified period or for any unspecified period, either without wages or for nominal wages, or

ii.      for the freedom of employment or other means of livelihood for a specified period or for an unspecified period, or

iii.    forfeit the right to move freely throughout the territory of India, or

iv.    forfeit the right to appropriate or sell at market value any of his property or product of his labour or the labour of a member of his family or any person dependent on him;

and includes the system of forced, or partly forced, labour under which a surety for a debtor enters, or has, or is presumed to have, entered, into an agreement with the creditor to the effect that in the event of the failure of the debtor to repay the debt, he would render the bonded labour on behalf of the debtor-Section 2(g)

Through its various judgments, Supreme Court has given a very broad, liberal and expansive interpretation of the definition of the bonded labour. According to the interpretation given by the apex court, where a person provided labour or service to another for remuneration less than the minimum wage, the labour or service falls clearly within the scope and ambit of the words forced labour under the constitution.

Constitutional And Legal Provisions

The Constitution of India:

The Constitution of India guarantees all its citizens-justice, social, economic and political; freedom or thought, expression, belief, faith and worship; equity of status and opportunity and fraternity, dignity of individual and unity of the Nation.

Under Article 23. Prohibition of traffic in human beings and forced labour – Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only on religion, race, caste or class or any of them.

Under Article 42. Provision for just and humane conditions of work and maternity relief – The State shall make provision for securing just and humane conditions of work and for maternity relief.

Under Article 43. Living wage, etc. for workers – The State shall endeavour to secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work and living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular the State shall endeavour to promote cottage industrial on an individual or co-operative basis in rural areas.

Indian Penal Code:

Under Section 374. Unlawful compulsory labour – Whoever unlawfully compels any person to labour against the will of that person, shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Children (Pledging of Labour) Act, 1933:

Children (Pledging of Labour) Act, 1933 says that unless there is something repugnant in the subject or context – “an agreement of pledging the labour of child” means an agreement written or oral, express or implied, whereby the parent or guardian of a child, in return for any payment or benefit received or to be received by him, undertakes to cause or allow the services of the child to be utilized in any employment. Provided that any agreement made without detriment to a child, and not made in consideration of any benefit other than reasonable wages to be paid for the child’s services and terminable at not more than a weeks notice, is not an agreement within the meaning of this definition. It also says that “Whoever, being the parent or guardian of a child, makes an agreement to pledge the labour of that child, shall be punished with fine which may extend up to fifty rupees”.

Commentary on The Bonded Labour System (Abolition) Act, 1976

Ø      On commencement of this Act the bonded labour system shall stand abolished and every bonded labourer shall stand freed and discharged free from any obligation to render bonded labour.

Ø      Any custom, agreement or other instrument by virtue of which a person is required to render any service as bonded labour shall be void.

Ø      Liability to repay bonded debt shall be deemed to have been extinguished.

Ø      Property of the bonded labourer to be freed from mortgage etc.

Ø      Freed bonded labourers shall not be evicted from homesteads or other residential premises which he was occupying as part of consideration for the bonded labour.

Ø      District Magistrates have been entrusted with certain duties and responsibilities for implementing the provision of this Act.

Ø      Vigilance committees are required to be constituted at district and sub-divisional levels.

Ø      Offences for contravention of provisions of the Act are punishable with imprisonment for a term which may extend to three years and also with fines which may extend to two thousand rupees.

Ø      Powers of Judicial Magistrates are required to be conferred on Executive Magistrates for trial of offences under this Act. Offences under this Act may be tried summarily.

Ø      Every offence under this Act shall be cognizable and bailable.

International Law on Bonded Labour Applicable in India

In addition to domestic laws, India is a party to numerous international human rights conventions and is thus legally bound by them. An extensive review is presented by the Human Rights Watch report on bonded labor in India.

These laws include;

• Convention on the Suppression of Slave Trade and Slavery, 1926

This convention requires signatories to “prevent and suppress the slave trade” and “to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.” It also obligates parties to “take all necessary measures to prevent compulsory or forced labor from developing into conditions analogous to slavery”. Convention on the Suppression of Slave Trade and Slavery, signed at Geneva, September 25, 1926; Protocol Amended the Slavery Convention, signed at Geneva, September 25, 1926, with annex, done at, New York, December 7, 1953, entered into force, December 7, 1953. A slave is someone “over whom any or all of the powers attaching to the right of ownership are exercised.” Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, done at Geneva, September 7, 1956; entered into force, April 30, 1957 (Supplementary Convention).

• Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956

The supplementary convention on slavery offers further clarification of prohibited practices and refers specifically to debt bondage and child servitude as institutions similar to slavery.

• Forced Labour Convention, 1930

The International Labour Organisation (I.L.O.) Forced Labour Convention requires signatories to “suppress the use of forced or compulsory labour in all its forms in the shortest period possible”.[1] In 1957, the I.L.O. explicitly incorporated debt bondage and serfdom within its definition of forced labor.[2] India, however, chose not to sign this convention.

• International Covenant on Civil and Political Rights (I.C.C.P.R.), 1966

Article 8 of the I.C.C.P.R. prohibits slavery and the slave trade in all their forms, servitude, and forced or compulsory labor. Article 24 entitles all children to “the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”[3]

• International Covenant on Economic, Social and Cultural Rights (I.C.E.S.C.R.), 1966

Article 7 of the I.C.E.S.C.R. provides that States Parties shall “recognize the right of everyone to the enjoyment of just and favourable conditions of work.” Article 10 requires Parties to protect “children and young persons… from economic and social exploitation”.

• Convention on the Rights of the Child, 1989

Article 32: “States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or… be harmful to the child’s health or physical, mental, spiritual, moral or social development.”[4] States are directed to implement and ensure these protections.

Article 35: “States Parties shall take all appropriate . . . measures to prevent the abduction, the sale of or traffic in children for any purpose or in any form.” A significant portion of the bonded child laborers of India are trafficked from one state to another, and some are sold outright.[5]

Article 36: “States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare”.[6]

• International Labour Organization (I.L.O.) Conventions

There are two I.L.O. Conventions, Convention No. 29 concerning Forced or Compulsory Labour (1930) and Convention No. 105 concerning Abolition of Forced Labour (1957).

Government of India has ratified both the Conventions.

Convention No. 29 cast an obligation on the Members of the I.L.O. which ratifies this Convention to suppress the use of forced or compulsory labour in all its form within the

shortest possible period. For the purpose of this Convention, the term “forced or compulsory labour” means 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.

Under Convention 105, each Member of the I.L.O. which ratifies this Convention is required to suppress and not to make use of any form of forced or compulsory labour-

1. as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
2. as a method mobilizing and using labour for purposes of economic development;
3. as a means of labour discipline;
4. as punishment for having participated in strike;
5. as a means of racial, social, national or religious discrimination.