THE BANYAN TREE: VOLUME II - BRINGING CHANGE - LAWS AND LEGAL AID FOR SOCIAL ACTION
( By Editor : Carol Huss )

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Section II

Some Laws Relating To Oppressed Sections Of The Indian Population

The oppressed sections in our society refer here to the economically, socially and politically backward classes of our society. They include the landless and unorganised labourers, the slum and pavement dwellers, the women workers, the child workers and the destitute: in short the poor voiceless millions in this country, who somehow manage to survive from day-to-day; and for whom noble words like ‘human dignity’ or ‘fundamental rights’ have no meaning, whose children don’t demand ‘bread’, or fruits’, who can only say : "We are hungry".

The Law has made certain provisions for these people in the form of special Acts, to ensure their protection, dignity and rights. This section deals with some of them, viz., untouchability, bonded labour, minimum wages and child labour.

Untouchability

Object
The practice of untouchability was abolished by the Untouchability Offences Act in 1955, which was later amended in 1976. It is now known as ‘Protection of Civil Rights Act, 1955’. The object of the Act was to perscibe punishment for preaching and practice of untouchability. Yet 33 years latter, we still see it being practiced, in certain parts of India, e.g. UP, MP, Bihar. In practical terms, what does the Act mean?

Provisions



  1. No one has the right to call anybody, particularly a member of the Scheduled caste, an untouchable or anything amounting to that.
  2. Everyone has an equal right to enter and use public places, institutions, hospitals, hotels, shops, and roads etc. without any discrimination on the ground of caste.
  3. It gives the right to every Scheduled caste person to contruct, acquire and occupy premises in any locality for the purpose of residence or for the practice of any profession, trade or business.
  4. It also gives them the right to observe any social, religious customs or ceremonies.
  5. The Act also gives the Scheduled caste person the right to buy and sell goods and obtain services from other people and use jewellery and finery.
  6. Finally, no one has the right to compel a Schedule caste person to do scavenging, sweeping, removing a carcass, or any other job of a similar nature.

Punishment

The offence of practicing untouchability is punishable with :



  1. Imprisonment which may extend to six months and fine upto Rs. 500/- or with both.
  2. In addition, if the offender is a person who has refused to sell goods/ render a service, the Court may also cancel or suspend his license.
  3. If the offender is a company, firm or association, then the person in charge will be held responsible, and as punishment, the Government can suspend the licence or rescind the grant given to them.

The offence under this Act is a cognizable offence. Normally in criminal cases, the accused person is believed to be innocent until he is proved guilty and the burden of proving the guilt rests on the prosecution. But in the case of an incident of the practice of untouchability, the burden of proof of innocence lies on the accused. In order words, when the victim of a forbidden act is a member of the Schedule caste, it will be presumed prima facie to have been committed on the grounds of untouchability.

Redress

Anyone witnessing a Schedule caste person being discriminated against on of the grounds of untouchability, needs to report the matter to the nearest police station, giving the following information, called FIR (First Information Report, Sec. 154 Cr. P.C.)



  1. Name and address of alleged offender;
  2. Nature (particulars of the offence or act committed)
  3. Name and address of witness (or person who witnessed it);
  4. Time, date and place of offence.

Release and Rehabilitation of Bonded Labourers

Bonded labour was legally abolished by the Central Government by the enactment of the Bonded Labour Abolition Act, 1976, but even today it continues to persist in several rural and tribal areas, iin various forms, and under different names.

Object

Bonded labour is said to exist when a person is compelled to work for another, for a definite/indefinite period for a no wage/nominal wage in return for some loan received in cash or kind, or in fulfillment of an earlier oral or written agreement between them.

The Act seeks to eradicate the very base of the system of bonded labour, by rendering invaild any bonded labour-contract or agreement, or claim (whether oral or written) by a creditor or landlord regarding monetary advances or loan extended to a labourer. It does not hold legal value. Therefore, according to Sec. 5 of the Act, the bonded labourer is by no means obliged to repay any bonded debt to his creditor. It also bars a creditor from filing any suit, because the Act consideres all bonded debts as paid.

Main features of bondage



  1. Unequal economic exchange or in other words, forced labour; (i.e. beggar);


  2. Unequal bargaining power;
  3. Denial of freedom of movement;
  4. Denial of the choice of alternative avenues of employment;
  5. Forfeiture of the right to earn a reasonable wage on one’s labour or the product of such labour.

Provisions of the Act



  1. Identification of bonded labourers, and punishment of offences related to the system;
  2. Release of bonded labourers and extinguishment of all bonded debts;
  3. Prohibition of bonded labourers being evicted from his home;
  4. Restoring any property which rightfully belongs to the bonded labourer.
  5. A government machinery facilitating the economic and social rehabilitation of the freed labourers.

Offence under the Act

The Act specifies the following offences:



  1. Compelling a person to render any bonded labour (Sec. 16);
  2. Avancing any loan under an agreement providing for bonded labour 5.17;
  3. Enforcing any customs, tradition, contract or agreement whereby a labourer or his family members are required to render any service under this system, S.18;
  4. Accepting any payment against a bonded debt which has been extinguished;
  5. Failure to restore to bonded laboures, possession of any property, which was seized from him, for recovery of the bonded debt S.19;
  6. Encouraging (abetting) or helping another person to commit one of the above offences.
  7. All offences mentioned above are considered to be serious and are, therefore, cognizable, which means that a person charged with such an offence can be arrested by a police officer without warrant.
  8. An offence under this Act is normally tried/summarily by an Executive Magistrate, who has been conferred the powers of a judicial magistrate I/II classes.

Punishment



  1. Every offence mentioned above is punishable with imprisonment upto 3 years and fine up to Rs.2000/-
  2. The offence relating to failure to restore possession of property, is punishable with imprisonment upto one year or fine not exceeding Rs. 1000/- Out of the fine recovered, part of it is to be paid to the bonded labourer, as due payment of his wage for labour extracted, while property was not restored to him.

All the above provisions are supposed to be effectively enforced, under the supervision of the District Magistrate, and the State Governments are expected to set up vigilance committees at district and sub-divisional levels, to assist the district magistrate in the release and rehabilitation of bonded labourers.

What can one do to help a bonded labourer?

Follow any one of the following courses of action :



  1. Inform the district magistrate/vigilance committee, regarding the facts and circumstances of the bonded labour system being practiced in a locality either individually or institutionally, in the form of an affidavit.1
  2. File a Writ Petition in the High Court under Article 226, in the Supreme Court under Article 32 for nforcement of fundamental rights, under Articles 19, 21 and 23.
  3. Make a complaint regarding non-payment of minimum wages in the labour court of the area.
  4. File and FIR in the nearest police station for harassment, threat, physical assault etc. by creditor.
  5. It is a bonded labourer by reason of his poverty or disabilitity cannot approach the court for redress, any piblic spirited individual or organisation, can, acting bonafide, approach the court by addressing a letter to the court, which shall consider a Writ Petition (Public Interest Litigation1), and take action on it.

Commentary

Bonded labuis an exploitative and unjust and illegal labour practice. It is a form of forced labour and Aritcle 23 of the Indian Constitution prohibits all forced labour. Hence the enforcement of such labour practice is a violationof worker’s fundamental right. Since the bonded labour system also deprives a person of his choice of alternative employment and compels himto adopt only one course of action, it violates his right to freedom under Article 19, viz. freedom to practice any profession and freedom to move freely throughout India.

Thirdly, it also deprives him of his life and liberty (Article 21) through an illegal labour contract and non payment of a just wage. However, despite this Act, this evil system persists in different parts of the country. Probably the saddest part or the irony is that those bonded labourers who manage to get freed by taking a recourse to the law are left to their own devices, without proper living, in addition to being socially ostracised. As a result, after seeing their plight, there are many who prefer to remain bonded, as it gives them an illusion of being safe and protected. In 1986 July, former Director General (Labour Welfare) to the Government of India, Mr. Laxmidhar Mishra said in a talk to IAS probationers :

.. ... while eloquent debates go on in the outside world about the status of these unfortunate denizens of society......they go on languishing in the social ladder built on inequity and opression."

He also narrated some of the ways in which freed bonded labourers are treated. Their children cannot go to school, their cattle and goats cannot go for grazing to the nearly forest, as they have to pass through the paddy fields of the landlords. Their womenfolk are abused and harassed. On one occasion, Mishra and his team came upon a freed labourer, who was completely maimed and mutilated by merciless assault from his landlord (this was in Bihar).







The Bonded Landlords


A new but sinister social pheonomenon is unfolding in the poverty ridden and semi feudal Telangana region of A. P. Thousands of well-to-do farmers, affluent landlords and government employees, pround of their high status in the case hierarchy are queing up before Mandal Revenue Officers (MRO) to get cash and their benefits by declaring themselvesas Harijan bonded labourers. This debasement of public morality has led to it to claim that it has the highest number of bonded labourers in the country. Last year the state set an All-India record by ‘ freeing’ more than 25,000 people from bondage as against some 2 lakh such people released all over the country.

The modus operandi is simple. The local landlord or the politician middleman gets signatures of people on petitions and submits them to the MRO seeking their release from bondage. The MROs are expected to conduct on-the-spot enquiries to find the bonafides of the person, but pressure is brought to hear on the MROs by the local MLAs, MPs and districtrict ministers to pass the list without enquiry.

Our rehabilitation from bondage, a person receives immediate cash relief of Rs.500/- and subsequently Rs.5,750/- in the form of agricultural land and farm implements. (Earlier the government used to supply milch cows and goats, but because of various irregularities, the government later decided to give land, as land, as officially stated, gives a sense of belonging that cannot be easily alienated). Investigations in Kandukar and Maheshwaram Mandals of Rangareddy district revealed that these fake bonded labourers often paid Rs.100-200 to middlemen as commission for enlisting their names.

The process of selection is so causual that at least 70 persons do not figure in the village voters’ list or ration cards! The attempt to defraud the government was so brazen a year old child, several school going students, a govenment school teacher, four employees of a city based tailoring shop, a driver of a senior manager in a big company, and a clerk, and a clerk were declared bonded labourers!

The racket would have been impossible but for the collusion of revenue officials, and the enquiries conducted by the MROs in many cases were merely an eyewash.

The major political parties have no intention of stopping it. Rather the indications are that they are actively abetting the crime, to build up their support base at the expense of the public exchequer. In the long run, the genuine bonded labourers are going to be the losers.

Source: " The Bonded Labourers" Ashok Das in Hindustan Times, Hyderabad, August 2, 1987. Legal News & Views. Vol. 7 No.9, (Sept. 1987),ISI, New Delhi, pp.19-20.


Payment of Minimum Wages

Objects
The Minimum Wages Act, passed in 1948, provides for the fixing of a minimum wage in certain employments. It aims to secure the welfare of workmen in a competitive market by fixing the minimum wages limit.

Provision
What the Act aims to achieve is to prevent exploitation of labour. The minimum wage rates must ensure not only the physical need of the worker, but also the subsistence of his family, and their educational and medical requirements. This minimum differs from state to state, and employment to employment, and the states are exhorted to periodically revise these rates by calculating the price index every year and adjusting the wage to it.

Implications of the Act
In 1982, in the Asiad Workers Case, (Peoples’ Union for Democratic Rights Vs. Union of India, AIR 1982 SC 1473), the Supreme Court held that a person who provides service to another for less than the minimum wage, renders forced service, i.e. begar, within the meaning of Article 23 which states that:

"Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contraventions of this provision shall be an offence punishable in accordance with the law".

The judgement delivered on this PIL (Public Interest Litigation) writ petition, on behalf of thousands of workers, which is a milestone in India Law, is reproduced below:

"Article 23 of the Constitution strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values ... Where a person provides labour or service to another for a remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of ‘forced labour’ under Article 23. The word ‘force’ must therefore be construed to include not only physical or economic circumstances which leaves no choice of alternatives to a person in want and comples him to provide labour or service, even though the remuneration received for it is less than the minimum wage."

Thus the Court came to the conclusion that denial of the minimum wage by itself is enough evidence of the existence of forced labour and that such forced labour is merely a variant of bonded labour.

While the Supreme Court judgement was certainly a laudable one, in reality, we still see numerous examples of people who work for less than the minimum, which naturally adversely affects their health and the health of their families. This is mainly because the followup or implementation of the judgements on cases brought to the attention of the courts is deplorable. For example, in the Asiad workers case, after all the hullabaloo of the Public Interest Litigation was over, the contractors again quietly reverted to paying the workers paltry wages, less than the minimum, in total desregard of the Supreme Court ruling.

Redress
If an individual is being paid less than the statutory minimum wage, he can get justice by moving the High Court or the Supreme Court solely on the basis of violation of Fundamental right Article 23, and/or approaching the labour court of the area.

Child Labour

Article 24 of the Indian Constitution says :

"No child below the age of 14 years shall be employed to work in any factory or mine engaged in any hazardous employment."

While the Constitution guarantees this, in reality, child labour is an accepted thing and several attempts to actually legalise it have been in the offing for many years.

India is said to have the largest child labour force in the world (about 100 million). The Government looks upon child labour as a necessary evil, although child labour is in no way within the framework of the Indian Constitution. The architects of independent India had dreamed of creating a free India to enable the children of this country to avail of the benefits of the joy of living and had laid down a poilcy, providing facilities for the healthy development of children and protection against exploitation and provision of free and compulsory education for all children.

Poverty is the main cause of child labour and it is obviously exploitative. Employers prefer children because they can be put on any job, paid less, and besides, children are active and amenable to discipline, and control. There are as many as 15 legislations in connection with this issue, but almost all the legislations dealing with child labour, were made more with a view to regulating it, rather than banning it. The situation is getting worse, because now children are also getting employed in construction work.

Justice D.A. Desai of the Supreme Court was right, when he said: "In such a country, not only contary to constitutional doctrine you allow Child Labour, but compound the felony by legalising it".

It is possible to take legal action for individual victims of child labour, solely on the basis of violation of Article 24 of the Constitution, but besides being a tedious process, even if individual children are freed, povety will again drive them back to work. What will be the future of these children, who from a tender age onwards break their bodies from hard work, denied adequate nutrition, health care and education? The vicious circle of poverty will never end. It is therefore no wonder that even after 41 years of freedom nearly 60% of the total population continues to live below the poverty line.

The above was a discussion 1 on the laws pertaining to the oppressed sections in our society. We have merely scratched the surface. Now let us go to the next section, which deals with laws relating to women.

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