Justice Hemant Gupta of the Supreme Court has been in the news for the wrong reasons. He was hearing a case filed by Swami Agnivesh (a crusader against bonded labour) on behalf of a woman worker who was allegedly raped repeatedly by an associate of a brick kiln contractor in R.S. Pura in Jammu. The petition was filed in 2012 after the woman and her husband expressed their desire to return to their native State in June, but the contractor refused to release them unless they paid him Rs.3 lakh. Although the husband managed to escape from the camp, his wife and child were kept in illegal confinement. It is alleged that the contractor and others repeatedly raped her during that time. As stated by Swami Agnivesh in his petition, the woman and her son were subsequently shifted to a rehabilitation home at the intervention of an NGO and the police. When the petition came up for hearing after a decade, it was represented by a lawyer appearing for the Union Territory of Jammu and Kashmir, and a closure report had been filed in the case in 2018 since the woman was not traceable.
Normally, when such old matters come up in court, the court records the statement made on behalf of the government and closes the case. However, Justice Hemant Gupta, known to be irrepressible, questioned whether at all the practice of bonded labour existed in the country and opined that a racket was being run to take advantage of the bonded labour issue. “Do you know who are bonded labourers? They are not bonded. They take the money and come there and are engaged by brick kilns. They come from backward areas. They take the money and eat the money and then resign. This is a racket in the country. These labourers only take advantage of this bonded labourer thing,” he said, as quoted by the news agency PTI.
Article 23
Fortunately for Justice Hemant Gupta, Swami Agnivesh was not present in court, having passed away in September 2020. Such off-the-cuff remarks from judges sitting on high pedestals are not only unsavoury but also out of place. Does the judge know of the provision in the Constitution in the form of Article 23, which reads:
“23. Prohibition of traffic in human beings and forced labour. (1) 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.”
Before making such offensive remarks, the judge, who comes from Punjab and has extensive experience as a lawyer and judge, ought to have not only read Article 23 but the elaborate discussion that took place in the Constituent Assembly before it incorporated the said provision. This Article is not a mere expression of faith or a teasing illusion, but a potential weapon to be used against perpetrators of acts prohibited under the Article. During the debate on the draft Article, several members welcomed it as a charter of liberty for the downtrodden who had thus far suffered from the imposition of forced labour in one form or other at the hands of princes and zamindars. The practice of begar was described by Raj Bahadur, a member of the Assembly, thus:
“As a man coming from an Indian State, I know what this begar, this extortion of forced labour, has meant to the downtrodden and dumb people of the Indian States. If the whole story of this begar is written, it will be replete with human misery, human suffering, blood and tears. I know how some of the princes have indulged in their pomp and luxury, in their reckless life, at the expense of the ordinary man, how they have used the downtrodden labourers and dumb ignorant people for the sake of their pleasure. I know for instance how for duck shooting a very large number of people are roped in forcibly to stand all day long in mud and slush during cold chilly wintry days. I know how for the sake of their game and hunting people have been roped in large numbers for beating the lion so that the princes may shoot it. I have also seen how poor people are employed for domestic and other kinds of labour, no matter whether they are ailing or some members of their family are ill…. Very often these tyrannies are perpetrated upon poor people by the petty officials. Not only do these petty officials perpetrate such tyrannies but they also extort bribes from the labourers who want to escape the curse of this begar.”
When a Constituent Assembly member, H.V. Kamath, raised the point that the word “begar” had not been defined anywhere in the Constitution, another member, S. Nagappa, intervened and pointed out that the practice of begar was also prevalent in his part of the country, that is, in Madras. S. Nagappa said about the practice:
“Whenever cattle die, the owner of the cattle wants these poor Harijans to come and remove the dead cattle, remove the skins, tan them and make chappals (slippers) and supply them free of cost.”
The poor people, especially the “Harijans”, were also forced by the landlords to plough their lands or whitewash their houses, and so on, for a mere morsel of food, he said. Nagappa added that forced labour was practised even by the government; for instance, when there was a murder, after the post-mortem the police forced them to remove the body and look after the subsequent funeral arrangements.
Justice Bhagwati’s words
Only after 25 years did Parliament think it fit to enact a new legislation, the Bonded Labour System (Abolition) Act, 1976, to provide for the release and rehabilitation of bonded labour and the prosecution of offenders by law. Swami Agnivesh, who founded the Bandhua Mukti Morcha, an organisation intended to help bonded labour, petitioned the Supreme Court about the non-implementation of the legislation even after a decade, since many States had not framed proper rules.
Justice P.N. Bhagwati, who was wedded to the cause of the downtrodden and underprivileged, did not lose time and set out the history behind the legislation as follows. He also expressed his dismay at the administration’s reluctance in admitting the existence of bonded labour:
“One major handicap which impedes the identification of bonded labour is the reluctance of the administration to admit the existence of bonded labour, even where it is prevalent. It is therefore necessary to impress upon the administration that it does not help to ostrich-like bury its head in the sand and ignore the prevalence of bonded labour, for it is not the existence of bonded labour that is a slur on the administration but its failure to eradicate it, and moreover not taking the necessary steps for the purpose of wiping out this blot on the fair name of the State is a breach of its constitutional obligation.”
Swami Agnivesh, the founder of Bandhua Mukti Morcha, an organisation intended to help bonded labour. While hearing a petition filed by him a decade ago, Justice Hemant Gupta made some remarks about bonded labour that were deemed highly inappropriate. | Photo Credit: RAJEEV BHATT
Thereafter, numerous petitions were filed from different States, and in each case, the Supreme Court did not make light of the existence of bonded labour but directed State governments to frame rules and implement the Act. Rehabilitation is a major component of the Act without which the release of labour from bondage will have no meaning. In fact, the Supreme Court said: “Once bonded labourers are identified and released, they have to be rehabilitated forthwith. It is a sad reality that the rehabilitation and related aspects of bonded labourers are not given adequate consideration till now. ... they will languish in streets, if there are no well chalked-out corresponding plans for rehabilitation. Hence, in our considered opinion, the primary direction shall be aimed at evolving and implementing rehabilitation plans.
“In modern days civil society is playing a greater role in nation building exercise. The commendable roles played by NGOs in very many situations strengthen the confidence of general public in NGOs. Always the state may not be in a position to reach out to the needy. As we have experienced in the past, civil society could efficiently fill up this gap. Now it is time for more interaction between civil society and state machinery in implementing social service schemes. The services of philanthropic organisations or NGOs could very well be utilised for rehabilitating released bonded labours. State could give necessary financial assistance under proper supervision.” (PUCL, 2004)
It is the visionaries of the Constitution who framed these specific provisions and, thereafter, it is the judiciary, which is the sentinel of Justice, which implements the provisions. Of late, it has become fashionable for judges to make remarks while being careful enough not to record them, but the remarks will have far-reaching effects on the government and society and, thereby, dilute the very provision of law enacted by Parliament comprising elected representatives of the people.
Perpetuating casteism
When a provision to deny anticipatory bail was incorporated in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Justice Adarsh Kumar Goel, a senior to Hemant Gupta, recorded in his order as follows:
“It is necessary to express concern that working of the Atrocities Act should not result in perpetuating casteism which can have an adverse impact on integration of the society and the constitutional values.
“It has been judicially acknowledged that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes.” (Dr Subash Kashinath Mahajan, 2018)
Nationwide agitation
This interpretation led to a nation-wide agitation and certain loss of lives, resulting in Parliament re-enacting a similar provision and also simultaneously filing a review application. While reversing the view expressed earlier, the Supreme Court said as follows:
“To treat SCs and STs as persons who are prone to lodge false reports under the provisions of the Scheduled Castes and Scheduled Tribes Act for taking revenge or otherwise as monetary benefits made available to them in the case of their being subjected to such offence, would be against fundamental human equality. It cannot be presumed that a person of such class would inflict injury upon himself and would lodge a false report only to secure monetary benefits or to take revenge. If presumed so, it would mean adding insult to injury, merely by the fact that person may misuse provisions cannot be a ground to treat class with doubt. It is due to human failings, not due to the caste factor. The monetary benefits are provided in the cases of an acid attack, sexual harassment of SC/ST women, rape, murder, etc.
“It is an unfortunate state of affairs that the caste system still prevails in the country and people remain in slums, more particularly, under skyscrapers, and they serve the inhabitants of such buildings.” (Union of India, 2020)
After the statement by Justice Hemant Gupta on the bonded labour system, one is reminded of the famous quote from Tolstoy:
“The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it and we did, but only the words were abolished, not the thing.”
We will have to substitute the word “bonded labour” for “slavery” in that quote.
Justice K. Chandru is a former judge of the Madras High Court.
The Crux
- While hearing a decade-old petition filed by Swami Agnivesh, Justice Hemant Gupta of the Supreme Court questioned whether at all the practice of bonded labour existed in the country and opined that a racket was being run to take advantage of the bonded labour issue.
- Article 23 of the Constitution is seen as a charter of liberty for the downtrodden.
