The Government of India abolished bonded labour during the period of the Emergency. The elimination of forced/bonded labour figured as item No. 4 in the 20-point economic programme announced by the then prime minister, Indira Gandhi, to the nation on 1 July 1975. Four items in the 20-point programme pertained to labour—i) Bonded labour, wherever it exists, will be declared illegal; ii) Review of laws on minimum agricultural wages; iii) New schemes for workers’ association in the Industry; and iv) New apprenticeship schemes to enlarge employment and training for weaker sections. On 25 October 1975, the President of India, Fakhruddin Ali Ahmed, promulgated an ordinance called the Bonded Labour System (Abolition)—BLSA—Ordinance, 1975. It said, “On the commencement of this ordinance, the bonded labour system stands abolished and every bonded labour shall, on such commencement, stand freed and discharged from any obligation to render any bonded labour.” Subsequently, both Houses of Parliament passed the BLSA Act in February 1976, and the government framed the BLSA Rules, 1976.

The enactment of the BLSA Act is said to be epochal by many because this was the first legal step taken by the Government of India, 25 years after Independence and 21 years after the Government of India ratified the ILO Convention 29 on Forced Labour to abolish slavery, in line with the Constitutional provision (Article 24) to prohibit forced/bonded labour. More importantly, it directly targeted bonded labour. Even though the British identified three forms of slave labour in India, the Anti-Slavery Act of 1843 addressed only the category of slave labour and not the other two—contract labour and bonded labour.

The three pillars of the abolition of bonded labour are (i) identification, (ii) release and (iii) rehabilitation. Since the enactment of the legislation and over a period of 37 years, 294,155 bonded labourers have been officially identified. All those identified have been freed, and 93.21 per cent of them have been rehabilitated. However, we do not know what share of the total number of bonded labourers those identified represent.

Not much is written about the political context in which the BLSA Act came into force—and there is an important contradiction here. On the one hand, the declaration of Emergency curtailed the democratic rights of workers and the citizens of India; on the other, the BLSA Act promised freedom and liberty. This contradiction carries forward, impacting the Act and associated policies.

There is a lingering problem in the definition and recognition of bonded labour. The study by National Labour Institute and Gandhi Peace Foundation conducted in 1978 was not accepted by the government because it identified 26.2 lakh bonded labourers in 1,000 villages of the 10 states that the study covered. The government asked the National Sample Survey Office (NSSO) to make note of this information, and in the 32nd Round, conducted in 1977–78, it made its own estimation of bonded labour, finding fewer numbers—3.43 lakhs in 16 major states. According to the Ministry of Labour’s Annual Reports, the release and rehabilitation of bonded labourers by the Government of India is highly successful, with 85.76 per cent of all bonded labourers freed.

We know, however, that the brick kilns in India survive on the use of hundreds of thousands of bonded labourers. In July this year, the National Human Rights Commission (NHRC) took cognizance of the petition of 1,000 bonded labourers in just three districts of the Punjab, filed by Dalit Dasta Virodhi Andolan led by Mr. Jai Singh. The Centre for Education and Communication (CEC) has brought to light the systematic employment of bonded labour in the garment units and textile mills of Tamil Nadu.

There have been a few attempts to broaden the definitional scope of the BLSA Act, in order to adequately address practices of enslavement of labourers, the most significant being judicial and legislative efforts. One was a judgment by Supreme Court Justice P.N. Bhagwati in 1983, and the second was an amendment to the Act in 1985.

Justice P.N. Bhagwati of the Supreme Court of India, in a judgment dated 16 December 1983, arising out of writ petition No. 2135 of February 1982 and filed by Bandhua Mukti Morcha, gave a broad, liberal and expansive interpretation of the definition of the bonded labour system, which can be summed up as follows:

– It is not necessary to prove beyond reasonable doubt the element of loan/debt/advance in a creditor/debtor relationship;

– if the debtor is rendering certain services to the creditor free of cost, it is to be presumed that he/she is doing it out of some economic consideration;

– He/she, therefore, is a bonded labourer entitled to the benefits of law.

The Supreme Court ruling also determined that work for payment less than the minimum wage constituted forced labour, and that any finding of forced labour would raise a presumption of bonded labour. In the Asiad Village case (Peoples’ Union For Democratic ... vs Union Of India & Others on 18 September 1982) Justice Bhagwati argued, “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.” This is again reiterated by the Supreme Court in its judgment of 18 September 1992 (Writ Petition 8143 of 1981, People’s Union for Democratic Rights vs. Union of India), in which it clarified 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 some force or some compulsion, which drives him to work though he is paid less than what he is entitled under law to receive.”

Following these important judicial interventions, the Government of India, on 24 December 1985, amended the BLSA Act 1976, clarifying that workers coming under the ambit of the Contract Labour (Regulation and Abolition) Act 1970 and Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979, undertaking labour in a situation of force or coercion count as an instance of the ‘bonded labour system’.

In the context of the lingering contradiction at the heart of the origin of the BLSA, examining the circulars issued by the central government at the time the BLSA Act was being discussed is instructive. There seem to have been two schools of thought on how to address bonded labour within the provisions of law. One that could be termed the Mishra school of thought, named after Mr. Laxmidhar Mishra, then Director General of Labour Welfare and afterwards Secretary, Labour, and including close collaborators, such Mr. S.R. Sankaran, who was Secretary to the Government of Andhra Pradesh in 1976. In this approach, the emphasis was placed on the bonded labourer—on her/his welfare and livelihood rights. We could also call this a humanitarian and welfare-oriented approach. What are the main characteristics of this approach? The three pillars of abolition are identification, release (freeing) and rehabilitation. The emphasis has generally been on the last point—rehabilitation, and probably rightly so because the main challenge at the time was to ensure that the freed bonded labourers did not fall back into bondage. Therefore, a Centrally Sponsored Scheme (CSS) was proposed in 1978, with detailed emphasis on rehabilitation, and was later revised in 1982 by L. N. Mishra. Funds were earmarked by the Planning Commission for rehabilitation and the central government set targets for rehabilitation for each state and allocated the funds. According to Mishra, there were, “three distinct phases of rehabilitation:

(i) Immediate physical and economic rehabilitation (necessitating payment of subsistence allowances);

(ii) Provision of some avenues of employment (through manual labour), payment of need-based minimum wages and supply of productive assets to help start a new life;

(iii) A number of social and economic programmes, including formation of workers’ organisations (indigenous self-help groups/thrift and credit groups, associations, cooperatives, trade unions etc.).”

According to this perspective, rehabilitation programmes must be multi-dimensional in order to be meaningful, and should cover a wide range of items such as allotment of homestead and agricultural land, land development (through provision of irrigation, integrated watershed planning, development and management), provision of low-cost dwelling units, provision of all inputs and back-up services under agriculture (including horticulture), animal husbandry, dairy, poultry, piggery; fodder cultivation; facilitating easy access to credit for meeting ceremonial, consumption and development needs; training for acquiring new skills, and refining, sharpening and updating existing skills; health and medical care (including immunisation of pregnant mothers and children in the 0–3 age group); suppling essential commodities at controlled prices in an uninterrupted manner; providing basic education to children of bonded labourers; and protecting civil rights. Currently, CSS provides Rs20,000 to each released bonded labourer.

The second school of thought was more recent and short-lived, and could be called the Srivastava school of thought, after Mr. A. K. Srivastava, Director General (Labour Welfare) for 1985. In a circular dated 13 August 1985, Srivastava asks for details on prosecutions under the BLSA Act 1976. He specifically asks for (1) total number of cases registered under bonded labour keepers; (2) total number of cases convicted; (3) total number of offenders imprisoned; (4) total number of offenders fined; (5) Total number of fines realised from the offenders; (6) Total number of cases acquitted; (7) Total number of cases pending in the courts. He again repeats this in the circular dated 25 August 1986. What marks it as a school of thought, despite the short tenure of Srivastava, is the emphasis, otherwise lacking in such circulars, on prosecution, which by the government being almost nil, and where such information is not generally given in any of its Annual Reports.

In addition to these two, we may observe a third, and quite recent, approach—bringing the framework of the BLSA Act 1976 within a broader framework of Decent Work, through a number of MoUs between the Ministry of Labour and Employment (MoLE), Government of India, and the concerned departments of a number of states. An MoU has been signed between MoLE, Government of India, and the departments of Labour of the governments of Uttar Pradesh, Bihar, Jharkhand and Chhattisgarh; it focuses on the brick kiln industry in these states, with the ILO working as an intermediary, facilitating the convergence. A similar MoU has also been signed between Andhra Pradesh and Orissa. The objectives, as stated in the MoU, are (1) promoting effective social dialogue for improving labour recruitment practices and working conditions; (2) improving work-place facilities; (3) promoting collective bargaining and imparting rights-based education to workers, facilitating their organisations; (4) improving social protection to brick kiln workers by converging government schemes at source and destination states; (5) having a focused approach to elimination of child labour in brick kilns.

Despite these movements with a possibly progressive contextualisation of the BLSA Act, it remains an example of an executive initiative bringing about a legislative intervention. This brings a specific flavour, method and dynamic to any further modification of the Act and its implementation. Bonded labour is not a static phenomenon, in which identification, release and rehabilitation of existing bonded labour extinguishes bonded labour. Bonded labour in India is an evolving phenomenon—evolving as India grows into a leading economic power in the world. There is need for more conscious engagement with this issue by the political class, as well as recognition of the agency of bonded labourers, both historically and currently, in their efforts to abolish bonded labour through social movements and trade unions. And there is need to engage with the Act, with an understanding of its possibilities as perhaps being constrained by its own emergence from an effort to free the bonded and provide for their welfare, in the midst of severe curtailment of any general idea of freedom for citizens. What would be an adequate legal and social framework for freedom for bonded labourers must arise from the agency of dalits, tribals, workers, trade unions, etc., and only this will meaningfully alter and strengthen the implementation of the Act.