Synopsis

The Bonded Labour System Abolition Act, 1976, sets the conceptual and administrative boundaries of bonded labour. The article looks at how these boundaries were defined, by examining the political economy of the international and the Indian definitions.

The Indian definition of bonded labour is drawn from the international definition on slavery and forced labour as it evolved in the course of civil society and state interventions against these human rights abuses. While examining the international definition, this article argues that the Atlantic slave trade, colonialism and the Cold War were the three defining moments in the evolution of the concept.  The ethical basis of the project against slavery and forced labour comes from the abolitionists. However, all abolitionists were not guided by ethical considerations alone; abolition served the political and economic compulsions of the colonial and capitalistic exploitation.

The Indian definition of bonded labour, a legislative expression of a constitutional provision against forced labour, was evolved during the Emergency years. Apoliticism and an overbearing administration left an indelible mark on the definition of bonded labour and the implementing procedures for its abolition. The characterisation of bonded labour as a feudal vestige further delimited the boundaries of bonded labour.

The prevalence of bonded labour in today`s India, a nation poised to emerge as an economic super power, is a blemish on its pride. There may be many who still debate whether bonded labour exists in India; at times, there are staunch denials from the government. Yet, empirical evidence, as produced by various independent studies; the recurrent news in the media on the release of bonded labourers from captivity by the administration; the Supreme Court (in WP (Civil) No. 3922 of 1985 (PUCL vs State of Tamil Nadu & Others)) authorising the National Human Rights Commission (NHRC), in 1997, to act as the monitoring agency for the implementation of the Bonded Labour System Abolition Act (BLSAA); and the global report on forced labour produced by the ILO in 2005 largely proves the prevalence of bonded labour in India even today.

The BLSAA, promulgated in 1976, not only sets the conceptual boundaries of bonded labour but also sets the boundaries of administrative procedures to address the problem. Early attempts by the Judiciary to broaden the boundaries of the definition of bonded labour (1982, Bandhua Mukti Morcha vs Union of India; 1984, PUCL vs Union of India; and 1984, Neerja Chaudhary vs Government of Madhya Pradesh) received stoic resistance from the administration and remained non-starters. Important academic contributions, for example, bonded labour as degrees of `unfreedom` (Surinder S. Jodhka, 1994) and indebtedness in circular migration (Jan Bremen, 1996) did not alter the boundaries of bonded labour as set by the Act.

Indian Law and its Links to International Instruments against Slavery

In official literature, the government of India insists that the Indian definition of bonded labour flows from the international definition. This relationship is usually established through references to the international instruments, including the ILO Convention on Forced Labour (No. 29) of 1930 that India ratified in 1954; the ILO Convention on the Abolition of Forced Labour (No. 105) of 1957, which was ratified by India in May 2000; the Universal Declaration of Human Rights of 1948; the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 1966; The League of Nations Slavery Convention of 1926; the UN Supplementary Convention on the Abolition of Slavery of 1956; and the ILO Convention on Fundamental Rights and Principles at Work, 1997.

However, these discussions miss the mercantile and colonial contexts in the evolution of these instruments, and the relevance of this context in understanding the evolution of the Indian concepts and instruments on slavery and forced labour.

Slavery as a Project of Capitalism and Colonialism

Recent debates on the `reparations` to Africa in lieu of the historic injustice the `civilised world` had done to it has thrown up rich literature that establishes the connection between slavery and capitalism as well as the need for understanding the movement of `abolition` stripped of its moralistic significance. These discussions forcefully put forward the argument that the Atlantic slave trade from the late fifteenth to the late nineteenth centuries, and its subsequent abolition were instrumental in the imperialist expansion by the European colonisers.

Toyin Falola (2004), Nigerian historian, in a Keynote address at Hannover University on Africa and slavery in context, deals with how, due to slavery, the Atlantic region became an active trading network that united three continents (Africa, Europe and the Americas) in the exchange of people, goods and capital. He says, “Credit and capital also developed as a result of slave trade. European merchants invested large sums of money in ships and goods; guns and other goods were produced in large quantities to sell in exchange for slaves.”

He also refers to Joseph E. Inikori`s studies on the economic history of Britain, in which Inikori establishes how the Atlantic commerce and the role of African labour contributed to the completion of the industrialisation process between the mid-seventeenth and the mid-nineteenth centuries.

Similarly, J.F. Ade Ajayi, in his article `Unfinished business: Confronting the legacies of slavery and colonialism in Africa` argues how “various features of the trans-Atlantic trade made it very different from any other type of slave trade or slavery in history” as it was “capital intensive and competitive among several European nations.”

Abolitionism was a mass movement deriving its strength from moral appeals against slavery. Ade Ajayi points out that the Protestant revolution of the sixteenth and seventeenth centuries clung to the argument that slavery is not condemned in the Bible as a sin. He recalls that the anti-slavery movement, which got triggered off from the Evangelical re-awakening of the eighteenth and early nineteenth centuries, organised mass rallies to force a change of policy on government but stopped short of declaring the Atlantic slave trade as a sin and a heinous crime against humanity.¹

The compatibility of slavery with imperialism has been established by many historians and political thinkers². Françoise Vergès in his article, `Colonizing Citizenship`, reminded us, “In 1848, the government which issued the decree of abolition declared Algeria to be a French department. French abolitionism was a doctrine which justified the colonization of Africa, Indochina and Madagascar. In post-slavery societies, forced labour replaced the chains of bondage. New techniques of discipline, new laws, were enacted to transform the slave into a worker for the colonial state. France was the first country to decree a body of laws, the Code Noir. …marriage, death, circulation, meetings, food, alcohol, clothes, illness, property, legal responsibility, rebellion, punishment from birth to death, the slave`s life was minutely governed.”³

Slavery, as an employer-employee relationship, reinvented itself as forced labour after abolition movements succeeded in formally abolishing chattel slavery in Europe, in their colonies and in United States. Suzanne Miers, in her paper, `Freedom is a Good Thing but it means a Dearth of Slaves: Twentieth Century Solutions to the Abolition of Slavery` vividly explains the emergent situation, “Often worse than chattel slavery, was the forced labour, resorted to by the colonial powers in an effort to make their colonies viable. Cheap labour was wanted for porterage, for building railways, docks and roads, for mining, crop growing and domestic service.”

Freed slaves became workers for the colonial states; and the colonial states created new institutions and practices, and in some cases improved upon the already existing forms, mostly as forced labour and in relation to debt, to control workers and use their labour power for the creation of wealth - “pawning of crops, of trees, and of the poor used debts to create access to cheap labour” (Toyin Falola, 2006).

From this perspective Françoise Vergès (1999) argues that slavery should be studied as a political system. She calls slavery a `bio-power`, whereby “every aspect of the life of the slave is organized, defined, controlled. Slavery, I contend, is a form of human relations.” Slavery, according to her, is “not the embodiment of Evil, of irrationality, but an expression of a desire for limitless power over other human beings. It was not simply a system directed by greed or immorality. Slavery and abolitionism must be studied as political systems, rather than being looked at from a humanitarian standpoint.”

Evolution of International Instruments against Slavery

Broadly, three stages are discernible in the international history of the abolition of slavery and the institutions and practices similar to slavery. First, the abolition of feudal slavery within European societies, as a project of enlightenment and marked by the declaration of the `the rights of man and of citizens` by the French Constituent Assembly in 1789; second, the abolition of chattel slavery in the British colonies in 1833 and in French colonies in 1848; and the subsequent abolition movement in United States, which emancipated black slaves in the country; the third, the UN Convention against slavery, 1926, and the ILO Convention on Forced Labour, 1930. Later, the UN came up with the Supplementary Convention on Institutions and Practices Similar to Slavery and the ILO in 1957 with the Abolition of Forced Labour Convention (No. 105), which outlawed the use of forced labour for political repression, economic oppression and labour discipline.

These stages in the intervention against slavery also correspond to different forms slavery took in the world of work. Each international instrument defines and redefines slavery in accordance with the different forms it takes.

As seen earlier, slavery and slave trade were essential parts of mercantile capitalism, and the declarations of abolition of slavery were intended to abolish forms of chattel slavery. However, the formal ending of the chattel slavery in Europe had to wait till 1890 when the leading colonial and maritime powers signed the first multilateral treaty against the slave trade  the Brussels Act. (Suzanne Miers)

At the end of the First World War, the victorious allies abrogated the Brussels Act, claiming it was no longer needed because slave trade had reduced considerably, and slavery was dying out. The newly established League of Nations and the ILO both made commitments to protect labour from new forms of slavery. Despite opposition from the colonial powers, the League of Nations appointed the Temporary Slavery Commission in 1924, of which ILO was also a party, to collect evidence on slavery in all its forms.

This Commission extended the definition of slavery to include serfdom and peonage, practised particularly in the Americas, and debt bondage, widespread in the Indian sub-continent.

However, the Slavery Convention passed in 19264 was a compromise formula arrived at by the colonial powers. It banned both slave trade and slavery and did not cover all the practices the commission had identified as slavery, including forced labour, peonage and debt bondage.

Meanwhile, the ILO adopted the Forced Labour Convention of 1930 (No. 29), which defined forced labour as “all work and service which is exacted from any person under the menace of any penalty and for which the said person did not offer himself voluntarily.” In theory, it differed from slavery because it was neither lifelong nor hereditary and the workers were not saleable.

During the 1920s and the 1930s, the practices of forced labour thrived in various parts of the world, under the imperialist ambitions of the European nations. The League of Nations appointed a new committee on slavery in 1932, which was also called the Advisory Committee of Experts on Slavery.

After the Second World War, the UN, which replaced the League, became the forum for intense competition between the capitalist and socialist blocs. Suzanne Miers reminds us that slavery and forced labour became pawns in this game.⁵

Under constant pressure from anti-slavery movements, the UN, in 1950, appointed an ad hoc committee of experts to consider slavery and practices resembling it, such as peonage and forced labour. This resulted in the adoption of the Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and Practices Similar to Slavery of 1956 by the UN. It brought in debt-bondage, forced marriages and adoption for exploitation as forms of slavery.

The Supplementary Convention was followed in 1957 by the ILO`s Abolition of Forced Labour Convention (No. 105). This outlawed the use of forced labour for political repression, economic oppression and labour discipline  a clear attack on the gulags and forced labour conditions in Soviet Union (Suzanne Miers).

Thus, the international instruments against slavery and the institutions and practices similar to slavery emerged from interplay of various forces including anti-slavery movements, the Capital`s urge to innovate means to control and extract labour power, and the Cold War. The early twentieth century witnessed intense lobbying by the rival camps of capitalist states and communist s- both as advocates of human freedom and emancipation. This period also witnessed sustained pressure from international pressure groups such as Anti-Slavery International on the issue of the abolition of slavery.

After the Second World War, nations liberated from the colonial yoke, emerged as a third force in the UN. However, these nations too, like their colonial masters, were not very keen to alter social customs and practices that amount to `practices similar to slavery`.

Under consistent pressure from Anti-Slavery International and other human rights groups, in 1974 the United Nations authorised a Working Group of five members, one from each of the five blocs including the Soviet and the western blocs, Africa, Asia and Latin America. This group is now called the Working Group on Contemporary Forms of Slavery.

Indian Law and its International Foundations

The evolution of the Indian definition of slavery, legal instruments and administrative mechanisms are to be seen in this context. As mentioned earlier, Indian understanding on bonded labour and the law to abolish it draws heavily from the UN Supplementary Convention on the Abolition of Slavery, Slave Trade, and Institutions and Practices Similar to Slavery, 1956 and ILO Forced Labour Convention, 1930.

According to the UN Supplementary Convention⁶, in order to qualify as a bonded labourer, a person must (1) be in debt, (2) must be underpaid and (3) the person must pledge to work in this condition until the debt is paid off.

Although the ILO Convention No. 29 on forced labour does not explicitly address bonded labour, the practice has subsequently been presumed to fall within its scope. The ILO defines forced labour as work or service exacted from a person under threat or penalty, which includes penal sanctions and the loss of rights and privileges, where the person has not offered him/herself voluntarily⁷. (Article 2.1, Forced Labour Convention, 1930, ILO Lex, ILO, 2005).

The ILO has categorised `forced labour` into five key areas⁸. These categories include slavery and abduction, misuse of public and prison works, forced recruitment, debt bondage and domestic workers under forced labour situations, and internal or international trafficking.

The global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work distinguishes between two traditional categories of debt bondage - peonage and serfdom more seen in Latin America and bonded labour seen in South Asia. Enganche in Latin America is a coercive recruitment practice, in which indigenous people are recruited by indebting their subsistence living, for which they have to produce goods and services (ILO 2001a). Similarly, financial advances are used to induce indebtedness among indigenous people, largely, in sugar cane and charcoal production, before the agricultural harvesting time, which leads to these people working to pay off their debts.

Bonded labourers differ from debt bondage in Latin America in that their period of indebtedness usually extends indefinitely with many occasions of inter-generational bondage (emphasis added). A significant characteristic of bonded labour in South Asia is that there are notable links to religious, cultural and caste-based social relationships and skewed land-ownership patterns, which is closely related to the local social and economic structures. (Kanchana N. Ruwanpura, Pallavi Rai, 2004). This distinction, made in terms of duration, inter-generational character and socio-cultural basis, is very important because it locates Indian debt bondage, decisively, in traditional agrarian relationships, as distinct from debt bondage in Latin America, “which can be shown to be more closely linked to global economic relations and not simply local conditions” (ibid).

The next section briefly looks at how relevant this characterisation of debt bondage is in India today. It will also look briefly at the historical evolution of the concept of bonded labour in India.

Slavery, Debt Bondage and Colonialism in India

Studies on the existence of slavery in early Indian history emphasises that slavery and debt bondage co-existed in India; but debt bondage emerged as the major instrument for providing a pliant labouring class ever since the Mauryan period (321-181 BC). Uma Chakravarti (1985) sums up the argument well, “In the past though slave labour existed, it has never preponderated over free labour, and the dasas invariably featured along with the karmakaras, even though the difference between them was not always easy to perceive. Now, the distinction invariably disappeared with the free and unfree merging in the category of the dependent labourer  whose dependence and bondage was created through debt.” She also argues that the caste system in India has provided for the creation of perpetually indebted workers among the untouchables as a result of brahmanical laws that weighed heavily against them.

In a similar vein of argument, Tanika Sarkar (1985) has also pointed out that though slavery and bondage are two separate forms theoretically, “in practice it would be extremely difficult to distinguish one from the other with absolute certainty, for during most of our period, the two constantly overlapped and merged into each other.”

The British colonisers, while addressing the issue of slavery in India, followed a policy of non-interference in the early years, allowing the natives to administer their own laws in matters of property, inheritance and contract. Later, their intervention under pressure from abolitionists, paved the way for a new form of labour control and exploitation, globally.

In 1835, the India Law Commission was appointed with Macaulay as its head. The anti-slavery report of 1841 prepared by the Commission identified three different forms of slave labour in India, namely contract labour, slave labour and bonded labour. However, in a deliberate move, the Anti-Slavery Act of 1843 only covered the category of slaves and ignored the categories of bondsmen and contract labour because the British and other European colonisers used the debt-induced indenture system to export workers from India to the plantations in Ceylon, Mauritius, Fiji, Guyana, South Africa, West Indies, etc. (Manjari Dingwaney, 1985)

Significantly, from 1834, before the adoption of the Anti-Slavery Act in 1843, the British colonial authorities had introduced the system of indentured Indian emigration based in Calcutta and Madras. Following the abolition of slavery in the French and the Dutch colonies in 1846 and 1873, respectively, the French and the Dutch planters reached agreements with British authorities in India to obtain labourers under the same system. Jamaica, Trinidad, Mauritius, Fiji, Guyana, Natal and Surinam governments maintained emigration agencies in Calcutta and Madras. (Laxmi Narayan Kadekar, 2005)

Studies on the other side of the emigration phenomenon corroborate this observation. The emancipation of African slaves in 1838 led to a severe shortage of labourers working in the sugar, coffee, tea, cocoa, rice and rubber plantations in the colonies. Indians were imported as commodities and an affordable alternative workforce to revitalise the labour intensive plantations in these countries. “With slavery abolished (1834) and apprenticeship terminated (1838), the indentured labourer became the means to ensure continuation of the economic plan called colonial plantation agriculture.” (University of Utrecht, 2006)

Indebtedness was used to control immigrant workers in their respective places of work. This is illustrated from the case of workers exported from South India to the Sri Lankan British plantations: “There is absolutely not a single coolie on any one estate without debts. The only question is about the difference of amount. The debt of each coolie varies from Rs. 50 to Rs. 200 and more. Seldom does a coolie owe less than Rs. 50. The average debt of the coolie is roughly Rs. 100. These debts are said to be accumulated in different ways. First, the amount advanced by the kangany before recruiting and the travelling expenses. Secondly, value of things brought from the kangany from time to time. Thirdly, cash lent by kangany during the illness and on the other occasions”.⁹ (Thaigaraja,1917, `Indian Coolies in Ceylon Estates`, The Indian Review, March; quoted in D.W. Ananda Wickramasinghe and D.C. Cameron 2002). Wikramasinghe et al conclude that the labour recruitment and patterns of exploitation that planters adopted resulted in the emergence of a unique system of bonded labour relations - the kangany system.

British culpability in legalising the debt-bondage system through indentured labour is again exemplified in the various measures they took to protect mass recruitments to their plantations in India. Labour Codes of Colonies Act of 1837 legalised the contract or indentured labour system. The Workman`s Breach of Contract Act of 1859 was designed to provide for the breaches of contract by workers. It effectively stopped all possibility of escape for workers from the tea estates. This was followed by the Act of 1863, which allowed the planter`s the right to arrest runaway coolies. The Inland Immigration Act of 1882 allowed uncontrolled recruitment without licence, and further tightened the planter`s control over labour. (Tanika Sarkar, 1985)

Although the indentured system was abolished in 1915, and the 1859 Act was repealed in 1926 under continuous pressure from the All India Trade Union Congress, (Tanika Sarkar, 1985). At the time of independence (1947), debt bondage and forced labour were realities for millions of workers in India. The social and economic situation of the Indian poor at the time of independence is eloquently captured by S.R. Sankaran, a former bureaucrat, in his J.P. Memorial Lectures 2001. “Historically, and at the time of Independence, the socio-economic scene in rural India has been characterised by widespread inequalities, especially in the ownership of land and wealth. A small minority of big landholders owned a major portion of the agricultural land, while millions of small peasants weighed down by perpetual indebtedness eked out a precarious existence on tiny fragmented holdings. More than half of the cultivated land was under tenancy and the bulk of the tenants enjoyed no security of tenure or fixity of rent. At the bottom of the agrarian pyramid, there was a vast army of landless agricultural workers whose social and economic status was pathetic.”

Framers of the Indian Constitution addressed this unfinished agenda of social and economic freedom by incorporating provisions for social transformation in it.

Right Against Forced Labour in the Indian Constitution

The Indian Constitution celebrated `liberty, fraternity and equality` in a country where poverty, inequality, the worst kinds of caste oppression, exploitation and religious strife were hallmarks. The Constitution was seen an as an instrument of social and economic revolution that is yet to be achieved. It has been argued that the Indian Constitution embodies three strands: “protecting and enhancing national unity and integrity; establishing institutions and spirit of democracy; and fostering a social revolution to better the lot of the mass of Indians” (Granville Austin, 1999).

In the same vein, commenting on Anna Arendt`s position on the founding of nations, Uday S. Mehta (2005) argues that in the founding of India as a new nation and the writing of a new Constitution and in the articulation of the powers of the state, the commitment to social uplift and equality has been at the centre. The Constitution of India attempted to address questions of destitution and social inequality experienced by the millions of  Dalits, Adivasis and landless poor, prospectively, within a political framework mainly as compensatory discrimination sanctioned by the Constitution and the government. (The debate on enforceable civil and political rights- the fundamental rights, and non-enforceable social, economic and cultural rights- the directive principles, in the Constitution; and the objections raised by Dr. B.R. Ambedkar, the Chairman of the Constituent Assembly on this matter, are outside the purview of this article).

The BLSAA, 1976, besides having its roots in international definitions of slavery and forced labour, flows directly from the Article 23 of Indian Constitution on prohibition of traffic in human beings and forced labour, which says, “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.”

The Indian Constitution, which came into force in January 1950, chose to use the word forced labour rather than slavery, when articulating the fundamental rights of Indian citizens. Why the Constituent Assembly, the experts who were constituted in 1948 to draft the Constitution for independent India, chose the word forced labour is a matter of debate.

It took twenty-seven years after independence for the government of India to come up with a law against debt bondage at work. The Statement of Object of the BLSAA, 1976 acknowledges the fact that there still existed in different parts of the country a system of usury under which the debtor or his descendants or dependants had to work for the creditor without reasonable wages or with no wages in order to extinguish the debt.

The Statement of Object further traces the Constitutional provisions under Article 23(1), which prohibits `begaar` and other similar forms of forced labour. Accordingly, it says, on 24 October, 1975, the President of India promulgated the Bonded Labour System (Abolition) Ordinance, 1975. By the said Ordinance, the bonded labour system was abolished, bonded labourers were freed and discharged from any obligation to render any bonded labour and their bonded debts were extinguished. To replace the Ordinance, the Bonded Labour System (Abolition) Bill, 1976 was introduced in the Parliament.

Definition of Bonded Labour in BLSAA

The BLSAA, 1976, abolishes the bonded labour system and states that every bonded labourer is now “freed and discharged from any obligation to render any bonded labour” (Ch. II, Sec. 4(1)). The Act also explicitly prohibits the giving of advances so as to bond labourers (Ch. II, Sec. 4(2(a))), cancels all outstanding bonded debts (Ch. III, Sec. 6) and orders local governments to rehabilitate freed bonded labourers (Ch. V, Sec. 14(b)). The penalty for enforcing the bonded labour system in contravention of this Act is up to three years in prison and a fine of up to Rs 2,000 (Ch. VI, Sec. 16).

Central to our discussion here is the definition of bonded labour as provided in the Act. The BLSAA defines, in (Ch. I, Sec. 2(g)), bonded labour as, “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:

(i)                 in consideration of an advance obtained by him or by any of his lineal ascendants or descendants (whether or not such advance is evidenced by any documents) and in consideration of the interest, if any, due on such advance, or

(ii)               in pursuance of any customary or social obligation, or

(iii)              in pursuance of an obligation devolving on him by succession, or

(iv)             for any economic consideration received by him or by any of his lineal ascendants or descendants, or

(v)              by reason of his birth in any particular caste or community, he would-

(1)              render, by himself or through any member of his family, or any person dependant on him, labour or service, to the creditor, or for the benefit of the creditor, for a specified period or for an unspecified period, either without wages or for nominal[1] wages, or

(2)              forfeit the freedom of employment or other means of livelihood for a specified period or for an unspecified period, or

(3)              forfeit the right to move freely throughout the territory of India, or

(4)              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 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.

Explanation -  For the removal of doubts, it is hereby declared that any system of forced, or partly forced labour under which any workman being contract labour as defined in Cl. (b) of subsection (1) of Sec. 2 of the Contract Labour (Regulation and Abolition) Act, 1970 (37 of 1970), or an inter-State migrant workman as defined in Cl. (e) of sub-section (1) of Sec. 2 of the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (30 of 1979), is required to render labour or service in circumstances of the nature mentioned in sub-clause (1) of this clause or is subjected to all or any of the disabilities referred to in sub-clauses (2) to (4), is `bonded labour system` within the meaning of this clause.”

[1] Nominal wages are defined as wages that are less than the minimum wage or, if no minimum wage is stipulated, the customary wage for a given type of work in a given locality (Ch. I, Sec. 2(i)).

The definition has an overarching principle that defines bonded labour within the framework of forced labour and of a debtor-creditor relationship. To be defined as bonded labourer, one has to work in lieu of advance taken by the person..

The definition introduces five primary sub clauses, which defines the debtor-creditor relationship in terms of inter-generational and customary bondage. This sub clause says that if a person is made to work as a descendent of someone who could not repay an advance taken, or as being born into a caste or ethnicity, the person would be a bonded labourer.

The definition further brings in four secondary sub clauses, which introduce the effect of forfeiture of constitutional and legal rights of the person including wages, freedom of employment, movement and right over produce.

The explanatory note says that a migrant labourer or contract labourer whose conditions of employment are in conjunction with the provisions of the Act, will fall under bonded labour. Moreover, nominal wages has been explained as those less than (statutory) minimum wages.

The organic link between the Constitutional provision against forced labour under Artcile 23 and its legislative interpretation in the BLSAA has been clearly established by various case laws. The Supreme Court, in People`s Union for Democratic Rights and Others vs Union of India and Others (Writ Petition No. 8143 of 1981, decided on 18 September 1982), a public interest litigation filed by PUCL on behalf of bonded labourers engaged in the construction of building complexes for Asian Games, says that begaar or unpaid work is forced labour. The two-judge bench of Justice P.N. Bhagwati and Justice Baharul Islam observed, “The word `force` must be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage. Therefore, where a person provides labour or service to another for remuneration, which is less 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.” In the same judgement, the Honourable judges make two other significant observations: one, that a forced labour situation cannot be condoned even if it involves a voluntary contract and, two, if the contract involves the liquidation of a debt or remuneration, it falls within forced labour.

Later, in the Bandhua Mukti Morcha vs Union of India and Others (Writ Petition No. 2135 of 1982, decided on 16 December 1983), the case of bonded labourers in the quarries of Haryana, Justice P.N. Bhagwati, Justice R.S. Pathak and Justice Amarendra Nath Sen said that bonded labour falls within forced labour as provided under Article 23. The judgment said, “Whenever it is shown that a 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 labourer. This presumption may be rebutted by the employer and also by the state government if it so chooses but unless and until satisfactory matter is produced for rebutting this presumption, the Court must proceed on the basis that the labourer is a bonded labourer entitled to the benefit of the provisions of the Act.”

Inherent Limitations of the Act

The BLSAA, a progressive legislation by all standards, locates Indian slavery in adverse debtor-creditor relationships in employment, but primarily in inter-generational customary bondage and its effect, in terms of the forfeiture of constitutional and legal rights of the person.

Such a position arises from the conception that at the time of the promulgation of the Act, debt bondage in India was largely found linked to the agrarian economy. A precursor to the Act was a study on bonded labour in India by the Lal Bahadur Shastri National Academy of Administration, Mussoorie (NAA, 1990), which, based on field studies in the Jaunsar-Bawar area of Uttar Pradesh and subsequently in the Bhan