Say NO - UNiTE | End Violence against Women
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Tuesday, November 24, 2009
Tuesday, November 10, 2009
Out on Parole and Partying??
The parole of Manu Sharma and his consequent partying has irked debates in various quarters of government and legal forum. Manu Sharma had been convicted after a prolonged battle in the murder of Jessica lal. He was awarded a life sentence and is currently expected to be in prison serving his term.
However, as a bolt from the blue. the country was suddenly awaken to the news of his being embroiled in a fight in a pub in Delhi. The immediate question was how was he a free man? It seems that the Govet. has released him from prison on account of his mother's ill health. The system of parole is existent in India but cannot be claimed as a matter of right. Parole can be granted only in extreme circumstances and subject to the satisfaction of the Govt. of the extremity involved therein. In the present circumstances the ill heath of the mother of the convict, who was seeing making appearances in certain programmes, was found extreme by the Govt. to grant him the benefit.
Is it not a mockery of the entire system and the people involved therein? Is it not a humiliation and disregard of the several people who gathered together to fight for justice in Jessica lal Murder when Manu Sharma was roaming as a free man? Is it not a travesty of justice for the immediate family members and near ones of the deceased?? It is the ultimate shame for the people and the nation as a whole if the rich and the powerful are able to make such inroads in the criminal justice network.
A visit to the jails reveal the sad plight of the prisoners. About 90% of them are from poor socio economic backgrounds. Their families- wife, children, ailing parents are unable to make ends meet. They starve, beg or end their lives in the misery that befalls them. In many situations, they are plagued by serious illnesses. How many times have the instrument of parole been used to allow them to visit their homes and stay there for a considerable period of time? In rare situations, if parole has been given, it has been for limited periods such as a day or two. No one has or should object to the same since it is in obedience of law that teh grant of parole is made.
BUt the Manu Sharma incident shocks the human conscience.A person of money and power, who needs to be at home to take care of his (un)well mother, is quite unbelievable and unworthy of legal consideration. It sounds strange as to how the govt.,if not for other reasons, had granted him parole on such flimsy grounds. The suspicion is further strengthened when he himself surrendered the very next day to prison authorities.
If the Criminal Justice System is allowed to be used by the powerful and rich, the day is not far when the country will lose its entity as a Democratic Republic.
However, as a bolt from the blue. the country was suddenly awaken to the news of his being embroiled in a fight in a pub in Delhi. The immediate question was how was he a free man? It seems that the Govet. has released him from prison on account of his mother's ill health. The system of parole is existent in India but cannot be claimed as a matter of right. Parole can be granted only in extreme circumstances and subject to the satisfaction of the Govt. of the extremity involved therein. In the present circumstances the ill heath of the mother of the convict, who was seeing making appearances in certain programmes, was found extreme by the Govt. to grant him the benefit.
Is it not a mockery of the entire system and the people involved therein? Is it not a humiliation and disregard of the several people who gathered together to fight for justice in Jessica lal Murder when Manu Sharma was roaming as a free man? Is it not a travesty of justice for the immediate family members and near ones of the deceased?? It is the ultimate shame for the people and the nation as a whole if the rich and the powerful are able to make such inroads in the criminal justice network.
A visit to the jails reveal the sad plight of the prisoners. About 90% of them are from poor socio economic backgrounds. Their families- wife, children, ailing parents are unable to make ends meet. They starve, beg or end their lives in the misery that befalls them. In many situations, they are plagued by serious illnesses. How many times have the instrument of parole been used to allow them to visit their homes and stay there for a considerable period of time? In rare situations, if parole has been given, it has been for limited periods such as a day or two. No one has or should object to the same since it is in obedience of law that teh grant of parole is made.
BUt the Manu Sharma incident shocks the human conscience.A person of money and power, who needs to be at home to take care of his (un)well mother, is quite unbelievable and unworthy of legal consideration. It sounds strange as to how the govt.,if not for other reasons, had granted him parole on such flimsy grounds. The suspicion is further strengthened when he himself surrendered the very next day to prison authorities.
If the Criminal Justice System is allowed to be used by the powerful and rich, the day is not far when the country will lose its entity as a Democratic Republic.
Tuesday, October 20, 2009
Criminal Justice System-Call for Reform
The recent death of key accused in the Rs 23-crore Ghaziabad PF scam, Ashutosh Asthana, at UP’s Dasna district jail under highly mysterious circumstances reopens the debate of protection issues of key witnesses in the criminal justice system.
Ashutosh Asthana a man of ordinary standing had been instrumental in disbursement of PF in connivance with judicial officers and sitting judges of High Court and Supreme Court as has been alleged. He was well aware of the illegalities involving persons of high stature and standing in public life. BUt his sudden demise has sent a jolt to the investigation. It is indicative of several things:
1. The failure of the Criminal Justice System to provide protection and security to key suspects and witnesses
2. The power demonstrated by the invisible classes who have been successful in eliminating the accused and prematurely throttling the justice delivery system
The country needs to improve and modenise its systems and processes in order to stop a repetition of the incident. In the past, there has been numerous incidents of suspects being found dead or unavailable or witnesses turning hostile. In majority of the situations, the accused involved were people of high standing in society- the so called powerful class. This unholy nexus between the powerful and the criminal justice machinery must be put to an end.
The Criminal Justice must be brought out of the controls of the political class,
and most importantly, the suspects and witnesses must be provided adequate security and protection by the system itself.
Ashutosh Asthana a man of ordinary standing had been instrumental in disbursement of PF in connivance with judicial officers and sitting judges of High Court and Supreme Court as has been alleged. He was well aware of the illegalities involving persons of high stature and standing in public life. BUt his sudden demise has sent a jolt to the investigation. It is indicative of several things:
1. The failure of the Criminal Justice System to provide protection and security to key suspects and witnesses
2. The power demonstrated by the invisible classes who have been successful in eliminating the accused and prematurely throttling the justice delivery system
The country needs to improve and modenise its systems and processes in order to stop a repetition of the incident. In the past, there has been numerous incidents of suspects being found dead or unavailable or witnesses turning hostile. In majority of the situations, the accused involved were people of high standing in society- the so called powerful class. This unholy nexus between the powerful and the criminal justice machinery must be put to an end.
The Criminal Justice must be brought out of the controls of the political class,
and most importantly, the suspects and witnesses must be provided adequate security and protection by the system itself.
Tuesday, October 13, 2009
Marital Rape : The Indian Viewpoint
John and Greta Rideout were in their early twenties. They were married for 21/2 years and had a daughter. But on 9th October, 1978, John woke up from a nap and demanded to have sex. In her words, “He was highly obsessed with sex; he wanted it two or three times a day. No matter what I gave him, he was never totally satisfied”. Violent sex, including slapping and slugging, seemed to give John the most pleasure. Greta refused on that particular occasion. John attacked her, dragged her when she tried to escape and began to ‘rape’ her. She submitted out of fear that he might further injure her. Greta managed to escape after this incident and filed charges against her husband under the Oregon laws of rape. John was arrested and charged with (marital) rape.
The above is not an isolated incident of marital rape. Such instances are numerous ; the only difference being that they are, more often, confined within the four walls and buried as normal course of matrimonial behavior. The law even does not attach enough culpability to such deviant conduct describing these instances of marital rape as strictly falling within the domestic arena where criminal law has no entry. Thus, though John Rideout was tried for rape, the jury found him not guilty of first-degree rape of his wife. (The reasons for such leniency, perhaps, lie in the historical evolution of the concept of rape. )
Marital Rape: Meaning
The term ‘marital rape’ refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words ‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.
There are principally three kinds of marital rapes:
• Force-only Rapes- The husband uses only enough force to coerce the wife to intercourse.
• Battering Rapes- Women are raped and simultaneously battered by their husbands- beaten, slapped, pushed, shoved etc. In battering rapes, women experience both physical and sexual violence.
• Sadistic/ Obsessive Rape- These involve torture and/or other perverse sexual acts. Pornography is frequently involved in sadistic forms of rape.
Historical Background
The concept of marital rape was unknown in history; most societies, considered it acceptable for men to force their wives to sex. Even the concept of ‘rape’ as an invasion of the physical and psychological integrity of woman was non prevalent. History reveals that there were direct ties between law, property and rape. ‘Raptus’ in the sense of violent theft, applied to both property and person. It was synonymous to abduction. If a woman was abducted and sexually molested, even violently, the crime was not against her body, but merely the theft of a woman against the consent of her guardian or those who had legal power over her. The harm was treated as a wrong against her father or husband. As Susan Brownmiller asserts , “The ancient patriarchs who came together to write their early covenants had used the rape of woman to forge their male power- how then could they see rape as a crime of man against woman? Women were wholly owned subsidiaries and not independent beings. Rape could not be envisioned as a matter of female consent or refusal; nor could a definition acceptable to males be based on a male- female understanding of a female’s right to her bodily integrity.” In other words, rape laws originated to safeguard the ‘masculine pride in the exclusive possession of a sexual object.’
Not surprisingly, therefore, married women ravished at the hands of their partners never formed the subject of rape laws. Infact, the laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of marital relations. It asserted the husband’s unquestioned right to sexual intercourse with his wife and her duty to submit. The latter’s right to freedom of choice in marital relations and the husband’s duty to respect that right was completely overshadowed by the patriarchal laws. As emphasized by Sir Mathew Hale -“The husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract, the wife hath given up herself unto her husband which she cannot retract.”
Ultimately, it was in the 1970s in America that women activists raised their voices for elimination of the marital rape exemption clause and extension of the guarantee of equal protection to women.
Legislative Framework in India
Thomas Babington Macaulay, the architect of the Indian Penal Code, adopted the same line of thinking while drafting the provisions of rape. Under the heading “Offences against human body”, clauses 359 and 360 dealt with the offence of rape. The former read as under:
“ A man is said to commit rape who, except in the circumstances hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
First: Against her will.
Secondly: Without her consent while she is insensible.
Thirdly: With her consent when her consent has been obtained by putting her in fear of death or of hurt.
Fourthly: With her consent, when the man knows her consent is given because she believes that he is a different man to whom she is, or believes herself, to be married.
Fifthly: With or without her consent when she is under nine years of age.
Exception: Sexual intercourse by a man with his wife, is in no case rape.”
Clause 360 stipulated the punishment for rape to be not more than fourteen years and not less than two years, with or without an additional fine.
Thus, in Macaulay’s draft, there was clear preference of the rights of the husband over his wife against the wife’s right to herself. The wife was not entitled to accuse her husband of rape, whatever the circumstances. But this provision, based on common law was not suitable to Indian conditions, especially at a time when child marriages were rampant. The low age of marriage should have necessitated the Law Commissioners to afford protection to child brides from sexual assaults. But Macaulay was much engrossed with the English Criminal Law system and Victorian notions of morality emphasizing the low status of women in society and thereby, failed to realize the injury which such provisions could do to the female populace.
The final version of rape in Section 375 of the Indian Penal Code, 1860 , differed little from Clause 359. The only amendments effected were in clause fifthly, wherein the age was fixed at ten years, and the exception which read as:
“Sexual intercourse by a man with his own wife, the wife not being under ten years of age is not rape”.
The subsequent years witnessed further changes with regard to the marital rape exemption clause and it now reads as:
“ Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376(1) thereafter spells out that, “Whoever, commits rape… unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine or both.”
The Penal Code therefore spells out the offence of marital rape in a very restricted sense . It specifies a statutory age limit of 12 years for married women, beyond which the offence does not extend. In other words, to constitute the offence of rape within the marital bonds, the wife must be less than 12 years. If she is between 12 and 15, an offence is committed which is less serious in nature , attracting mild punishment. However, once the age crosses fifteen, the rape legislation affords absolute immunity to the husband to impose himself on his wife and exercise complete sexual control over her body, in direct contravention to Human Rights regulations.
Efforts of Law Commission
The Law Commission of India in its 42nd report put forward the necessity of excluding marital rape from the ambit of Sec. 375. In their words , “Naturally the prosecutions for this offence are very rare. We think it would be desirable to take this offence altogether out of the ambit of Sec. 375 and not to call it rape even in a technical sense. The punishment for the offence may also be provided in a separate section.”
The subsequent Law Commission however disagreed with the restructuring suggested by the former. They felt that such arrangement would “produce uncertainty and distortion” and hence Sec. 375 should “retain its present logical and coherent structure.” With regard to age, however, they were of the opinion that it should be increased to 18 years. In their words , “ the minimum age of marriage now laid down by law (after 1978) is eighteen years in the case of females and the relevant clause of Sec. 375 should reflect this changed attitude. Since marriage with a girl below eighteen years s prohibited (though this is not void as a matter of personal law) sexual intercourse with a girl below 18 years should also be prohibited.” The recommended section thus read as:
“Exception: Sexual intercourse by a man with his own wife, the wife not being under 18 years of age is not rape.”
Even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision “may amount to excessive interference with the marital relationship.” The only suggestion made is (again) with regard to age that may be enhanced from 15 to 16 years.
Marital rape: The Opposition
Marital rape has never received the attention of the lawmakers. It has never been discussed, debated or deliberated upon. It has simply been eluded; perhaps due to certain obvious reasons.
• In the first place, Indian societal structure do not approve of women who ‘take up arms’ against their families, especially husbands. The wife’s role is traditionally defined as a homemaker, soft and obedient by nature and who regards her husband as next to God (the concept of pati parameshwar ).
• Secondly sex (even though forced) within marriage is viewed as a marital obligation. Few would recognize ‘forced sex’ as amounting to rape. The vast population including its intelligentsia would perhaps regard it as sex ‘being stretched too far’ or ‘just one extension of domestic violence’ .
• Thirdly, sex is a taboo in Indian society. What is meant, is not the practice, for it remains widespread amongst all sections of people, whether consensual or non- consensual; but the awareness of sexual rights amongst Indian women. “Their right to say no” has never been talked of- their obligation to obey has only been stressed upon.
• Economic resources play a significant role in women’s ability to reinforce her rights and the society’s obligation to respect it. In India, majority of the women do not enjoy economic independence. They are dependent on their husbands for food, clothing and shelter. Recognition of the offence of marital rape, may in such a situation, pose greater difficulty.
• Lastly, the legislators have perceived of the problem as not deserving adequate attention for certain reasons:
o Poverty, unemployment, illiteracy etc. have been their primary cause of concern, not the hapless victims of ‘forced rapes’ by husbands.
o They believe that even if marital rape is recognized, it would prove to be a mere cosmetic provision in the Penal Code. Indian women would hardly dare to accuse their husbands of rape and launch prosecutions to convict them.
o Legitimizing the offence of marital rape might tantamount to challenging the existing social ethos. It might break the notions of power, control and dominance and open a whole range of issues having difficulties and perplexing implications.
Marital Rape- The Arguments
The myths related to the act of marital rape must be shirked off . Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honor and dignity of a human being, and reduces her to a chattel to be utilized for one’s self-convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury.
Medical evidence proves that rape has severe and long lasting consequences for women.
o Physical injuries to vaginal and anal areas, lacerations, soreness, bruising, fatigue, vomiting
o Broken bones, black eyes, bloody noses etc.
o Anxiety, shock, intense fear, depression and suicidal thoughts.
o Gynecological effects include miscarriage, still-births, bladder infections, STDs and infertility.
o Long drawn symptoms of marital rape include disordered eating, insomnia, intimacy problems, negative self-image and sexual dysfunction.
o Research has also indicated that marital rape survivors often report flashback, sexual dysfunction and emotional pain, even after years of violence.
The menace is further worsened by the fact that in marital rapes the victim continues to live with the rapist. The risk of her being assaulted again remains high and the fear drives her into a state of deep emotional and psychological imbalance.
Additionally the belief that women would prefer to remain silent than go public with the story of sexual assault by her husband affords no reason for adhering to the exemption. Criminal law cannot turn a deaf ear towards the injustice and inhumanity perpetrated in society. It must interfere and impose the stamp of criminality to unlawful acts that occur, irrespective of the fact as to whether such recognition bears the desired fruits. Complaints against marital rape may be few, yet it is of utmost necessity that the law declares it to be a penal offence.
Concluding Remarks
The time is ripe for the Indian Legislature to awake from its years of slumber and make amendments to the Indian Penal Code. Several jurisdictions of the world have either recognized marital rape as an offence or else set in motion the task of breaking the shackles of traditionalism. Even the Supreme Court of Nepal has ruled that forced sex within marriage constitutes marital rape. Unfortunately, India is lagging behind. But there is nothing to believe that marital rape does not happen in Indian families. It is prevalent in every city, every town, every village of India. It is happening in our very neighborhoods; the only difference is that we have turned a blind eye to the issue. The lawmakers must realize that if the sanctity of the Constitution is to be maintained, the dignity and honor of the womenfolk must be vindicated. The fundamental duty of every citizen of India to denounce practices derogatory to the dignity of women as well as to value and preserve the rich heritage of our composite culture is pointer to that very fact. The culture and tradition of India emphasizes on strength not abuse, equality, not power and control. If such heritage is to be reinstated in Indian life, women must find a place of respect. As said by Manu , “ Where females are honored, there the deities are pleased; but where they are dishonored, there all religious rites become useless. Women must be honoured…”
The above is not an isolated incident of marital rape. Such instances are numerous ; the only difference being that they are, more often, confined within the four walls and buried as normal course of matrimonial behavior. The law even does not attach enough culpability to such deviant conduct describing these instances of marital rape as strictly falling within the domestic arena where criminal law has no entry. Thus, though John Rideout was tried for rape, the jury found him not guilty of first-degree rape of his wife. (The reasons for such leniency, perhaps, lie in the historical evolution of the concept of rape. )
Marital Rape: Meaning
The term ‘marital rape’ refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words ‘unwanted intercourse’ refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent.
There are principally three kinds of marital rapes:
• Force-only Rapes- The husband uses only enough force to coerce the wife to intercourse.
• Battering Rapes- Women are raped and simultaneously battered by their husbands- beaten, slapped, pushed, shoved etc. In battering rapes, women experience both physical and sexual violence.
• Sadistic/ Obsessive Rape- These involve torture and/or other perverse sexual acts. Pornography is frequently involved in sadistic forms of rape.
Historical Background
The concept of marital rape was unknown in history; most societies, considered it acceptable for men to force their wives to sex. Even the concept of ‘rape’ as an invasion of the physical and psychological integrity of woman was non prevalent. History reveals that there were direct ties between law, property and rape. ‘Raptus’ in the sense of violent theft, applied to both property and person. It was synonymous to abduction. If a woman was abducted and sexually molested, even violently, the crime was not against her body, but merely the theft of a woman against the consent of her guardian or those who had legal power over her. The harm was treated as a wrong against her father or husband. As Susan Brownmiller asserts , “The ancient patriarchs who came together to write their early covenants had used the rape of woman to forge their male power- how then could they see rape as a crime of man against woman? Women were wholly owned subsidiaries and not independent beings. Rape could not be envisioned as a matter of female consent or refusal; nor could a definition acceptable to males be based on a male- female understanding of a female’s right to her bodily integrity.” In other words, rape laws originated to safeguard the ‘masculine pride in the exclusive possession of a sexual object.’
Not surprisingly, therefore, married women ravished at the hands of their partners never formed the subject of rape laws. Infact, the laws bestowed an absolute immunity on the husband in respect of his wife, solely on the basis of marital relations. It asserted the husband’s unquestioned right to sexual intercourse with his wife and her duty to submit. The latter’s right to freedom of choice in marital relations and the husband’s duty to respect that right was completely overshadowed by the patriarchal laws. As emphasized by Sir Mathew Hale -“The husband cannot be guilty of rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract, the wife hath given up herself unto her husband which she cannot retract.”
Ultimately, it was in the 1970s in America that women activists raised their voices for elimination of the marital rape exemption clause and extension of the guarantee of equal protection to women.
Legislative Framework in India
Thomas Babington Macaulay, the architect of the Indian Penal Code, adopted the same line of thinking while drafting the provisions of rape. Under the heading “Offences against human body”, clauses 359 and 360 dealt with the offence of rape. The former read as under:
“ A man is said to commit rape who, except in the circumstances hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:
First: Against her will.
Secondly: Without her consent while she is insensible.
Thirdly: With her consent when her consent has been obtained by putting her in fear of death or of hurt.
Fourthly: With her consent, when the man knows her consent is given because she believes that he is a different man to whom she is, or believes herself, to be married.
Fifthly: With or without her consent when she is under nine years of age.
Exception: Sexual intercourse by a man with his wife, is in no case rape.”
Clause 360 stipulated the punishment for rape to be not more than fourteen years and not less than two years, with or without an additional fine.
Thus, in Macaulay’s draft, there was clear preference of the rights of the husband over his wife against the wife’s right to herself. The wife was not entitled to accuse her husband of rape, whatever the circumstances. But this provision, based on common law was not suitable to Indian conditions, especially at a time when child marriages were rampant. The low age of marriage should have necessitated the Law Commissioners to afford protection to child brides from sexual assaults. But Macaulay was much engrossed with the English Criminal Law system and Victorian notions of morality emphasizing the low status of women in society and thereby, failed to realize the injury which such provisions could do to the female populace.
The final version of rape in Section 375 of the Indian Penal Code, 1860 , differed little from Clause 359. The only amendments effected were in clause fifthly, wherein the age was fixed at ten years, and the exception which read as:
“Sexual intercourse by a man with his own wife, the wife not being under ten years of age is not rape”.
The subsequent years witnessed further changes with regard to the marital rape exemption clause and it now reads as:
“ Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.” Section 376(1) thereafter spells out that, “Whoever, commits rape… unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine or both.”
The Penal Code therefore spells out the offence of marital rape in a very restricted sense . It specifies a statutory age limit of 12 years for married women, beyond which the offence does not extend. In other words, to constitute the offence of rape within the marital bonds, the wife must be less than 12 years. If she is between 12 and 15, an offence is committed which is less serious in nature , attracting mild punishment. However, once the age crosses fifteen, the rape legislation affords absolute immunity to the husband to impose himself on his wife and exercise complete sexual control over her body, in direct contravention to Human Rights regulations.
Efforts of Law Commission
The Law Commission of India in its 42nd report put forward the necessity of excluding marital rape from the ambit of Sec. 375. In their words , “Naturally the prosecutions for this offence are very rare. We think it would be desirable to take this offence altogether out of the ambit of Sec. 375 and not to call it rape even in a technical sense. The punishment for the offence may also be provided in a separate section.”
The subsequent Law Commission however disagreed with the restructuring suggested by the former. They felt that such arrangement would “produce uncertainty and distortion” and hence Sec. 375 should “retain its present logical and coherent structure.” With regard to age, however, they were of the opinion that it should be increased to 18 years. In their words , “ the minimum age of marriage now laid down by law (after 1978) is eighteen years in the case of females and the relevant clause of Sec. 375 should reflect this changed attitude. Since marriage with a girl below eighteen years s prohibited (though this is not void as a matter of personal law) sexual intercourse with a girl below 18 years should also be prohibited.” The recommended section thus read as:
“Exception: Sexual intercourse by a man with his own wife, the wife not being under 18 years of age is not rape.”
Even the latest report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision “may amount to excessive interference with the marital relationship.” The only suggestion made is (again) with regard to age that may be enhanced from 15 to 16 years.
Marital rape: The Opposition
Marital rape has never received the attention of the lawmakers. It has never been discussed, debated or deliberated upon. It has simply been eluded; perhaps due to certain obvious reasons.
• In the first place, Indian societal structure do not approve of women who ‘take up arms’ against their families, especially husbands. The wife’s role is traditionally defined as a homemaker, soft and obedient by nature and who regards her husband as next to God (the concept of pati parameshwar ).
• Secondly sex (even though forced) within marriage is viewed as a marital obligation. Few would recognize ‘forced sex’ as amounting to rape. The vast population including its intelligentsia would perhaps regard it as sex ‘being stretched too far’ or ‘just one extension of domestic violence’ .
• Thirdly, sex is a taboo in Indian society. What is meant, is not the practice, for it remains widespread amongst all sections of people, whether consensual or non- consensual; but the awareness of sexual rights amongst Indian women. “Their right to say no” has never been talked of- their obligation to obey has only been stressed upon.
• Economic resources play a significant role in women’s ability to reinforce her rights and the society’s obligation to respect it. In India, majority of the women do not enjoy economic independence. They are dependent on their husbands for food, clothing and shelter. Recognition of the offence of marital rape, may in such a situation, pose greater difficulty.
• Lastly, the legislators have perceived of the problem as not deserving adequate attention for certain reasons:
o Poverty, unemployment, illiteracy etc. have been their primary cause of concern, not the hapless victims of ‘forced rapes’ by husbands.
o They believe that even if marital rape is recognized, it would prove to be a mere cosmetic provision in the Penal Code. Indian women would hardly dare to accuse their husbands of rape and launch prosecutions to convict them.
o Legitimizing the offence of marital rape might tantamount to challenging the existing social ethos. It might break the notions of power, control and dominance and open a whole range of issues having difficulties and perplexing implications.
Marital Rape- The Arguments
The myths related to the act of marital rape must be shirked off . Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honor and dignity of a human being, and reduces her to a chattel to be utilized for one’s self-convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury.
Medical evidence proves that rape has severe and long lasting consequences for women.
o Physical injuries to vaginal and anal areas, lacerations, soreness, bruising, fatigue, vomiting
o Broken bones, black eyes, bloody noses etc.
o Anxiety, shock, intense fear, depression and suicidal thoughts.
o Gynecological effects include miscarriage, still-births, bladder infections, STDs and infertility.
o Long drawn symptoms of marital rape include disordered eating, insomnia, intimacy problems, negative self-image and sexual dysfunction.
o Research has also indicated that marital rape survivors often report flashback, sexual dysfunction and emotional pain, even after years of violence.
The menace is further worsened by the fact that in marital rapes the victim continues to live with the rapist. The risk of her being assaulted again remains high and the fear drives her into a state of deep emotional and psychological imbalance.
Additionally the belief that women would prefer to remain silent than go public with the story of sexual assault by her husband affords no reason for adhering to the exemption. Criminal law cannot turn a deaf ear towards the injustice and inhumanity perpetrated in society. It must interfere and impose the stamp of criminality to unlawful acts that occur, irrespective of the fact as to whether such recognition bears the desired fruits. Complaints against marital rape may be few, yet it is of utmost necessity that the law declares it to be a penal offence.
Concluding Remarks
The time is ripe for the Indian Legislature to awake from its years of slumber and make amendments to the Indian Penal Code. Several jurisdictions of the world have either recognized marital rape as an offence or else set in motion the task of breaking the shackles of traditionalism. Even the Supreme Court of Nepal has ruled that forced sex within marriage constitutes marital rape. Unfortunately, India is lagging behind. But there is nothing to believe that marital rape does not happen in Indian families. It is prevalent in every city, every town, every village of India. It is happening in our very neighborhoods; the only difference is that we have turned a blind eye to the issue. The lawmakers must realize that if the sanctity of the Constitution is to be maintained, the dignity and honor of the womenfolk must be vindicated. The fundamental duty of every citizen of India to denounce practices derogatory to the dignity of women as well as to value and preserve the rich heritage of our composite culture is pointer to that very fact. The culture and tradition of India emphasizes on strength not abuse, equality, not power and control. If such heritage is to be reinstated in Indian life, women must find a place of respect. As said by Manu , “ Where females are honored, there the deities are pleased; but where they are dishonored, there all religious rites become useless. Women must be honoured…”
SOCIAL JUSTICE AND SOCIAL ENGINEERING THROUGH LAW IN THE FIELD OF BONDED LABOR
Bonded labor is a social evil. It is an unfortunate and painful relic of our feudal past. Although feudalism itself has been destroyed, the system of bonded labor has continued to exist in many forms in different parts of our country and has assumed serious magnitude in the world human rights in recent years. As observed by Will Moore Kendall - entering into the society was the necessity of the time, but human being was not prepared to surrender his inherent virtues provided by the nature- freedom and dignity. But the concept of ‘Bandhua Mazdoor’ is inconsistent to these basic virtues guaranteed to citizens as well as non-citizens under Art 21 of the Indian Constitution.
Bonded Labor: Conceptual Analysis:
According to the Statesman Dictionary- Labor under Bondage has been defined as “ a legal deed by which a person engaged himself and his representative to fulfil specific condition or pay money.” The Royal Commission on Labor (1931) has defined it as follows- “ The labor borrows money from the landlord under a contract to work until the debt is repaid. The debt tends to increase rather than diminish and the man, and sometimes his family, is bound for life”.
The Bonded Labor System (Abolition )Act 1976 has defined the term to mean-“ A laborer who incurs or has or is presumed to have incurred a bonded debt.” It is a system of forced labor under which the debtor enters into an agreement with the creditor to the effect that he would render, by himself or through any member of his family or any person dependant upon him, labor or service to the creditor for a specified period or for an unspecified period, either without wages or for nominal wages, or
• Forfeit the freedom of employment in other means of livelihood for a specified period or unspecified period or
• Forfeit the right to move freely throughout the territory of India or
• Forfeit the right to appropriate or sell at market value any of his property or product of his labor or that of a member of his family or any person dependant on him.
The National Sample Survey Organization (June, 1977) has viewed bonded labor as
“working with an employer under obligation but work not specifically compensated by any wage/ salary.”
The above definitions reveal that a bonded laborer has virtually no bargaining power. He has no right to refuse to work except under the terms set by his master. He can neither quit nor take up work of another employer. By virtue of economic compulsions or customary needs, the bonded laborer is tied to his master and subject to his whims and fancies. As pointed by the apex court of the country “ They are non- beings, exiles of civilization living a life worse than that of animals, for the animals are at least free to roam around about as they like and they can plunder or grab food whenever they are hungry, but these outcasts of society are held in bondage, robbed of their freedom and they are confined to an existence when they have to live either in hovels or under the open sky and be satisfied with whatever little unwholesome food they can manage.. Not having any choice they are driven by poverty and hunger into a life of bondage to a dark bottom less pit in a cruel exploitative society from which they cannot hope to be rescued.”
Constitutional and Statutory Prohibition:
The Constitution of India, a humane document which directs every organ of the state to strive for the fullest development of the personality of every individual , enacts in Art 21 that- “ No person shall be deprived of his life and personal liberty except according to the procedure established by law.’
The fundamental right to life has many attributes. It includes the right to live with human dignity, and all that goes along with it, namely, the bare necessities of life viz, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about, mixing and commingling with fellow human beings, right to protect against torture or cruel or inhuman treatment. In Maneka Gandhi v. Union of India the Supreme Court held that the expression ‘personal liberty’ is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and includes the right to eat or sleep when one likes or to work or not work as and when one pleases and several such other rights.
Art 23 of the Constitution deals with Right against Exploitation. ‘Exploitation’ means the utilization of person for one’s own ends. It is opposed to the dignity of the individual, to which the preamble of our constitution refers. It is also opposed to the Directive Principles of State Policy, for example, Art 39(e) and (f) which provides respectively that the state shall ensure that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter into avocations unsuited to their age or strength; that childhood and youth are protected against exploitation and against immoral and material abandonment.
Art 23(1) prohibits traffic in human beings and beggar and other similar forms of forced labor and provides that any contravention shall be an offence punishable in accordance with law.
The word ‘begar’ has not been defined in the Constitution but it may be defined as ‘labor or service exacted by government or a person in power without giving remuneration for it.’ The word ‘other similar forms of labor’ has been held to include every form of forced labor and it makes no difference whether the person who is forced to give his labor or service to another is remunerated or not.
In Bandhua Mukti Morcha v. Union of India , Justice Bhagwati classified bonded labor under Art 23. The learned judge stated, ‘The system of bonded labor stood prohibited by Art 23 and there could be no more solemn and effective prohibition than the one enacted in the Constitution.’
To give the Constitutional provisions a true shape, it was essential that the Government enacted a law so as to put an end to this gruesome system of exploitative labor. The most sincere attempt came on July 1, 1975 when our late Prime Minister, Smt. Indira Gandhi, in her 20 point program stated- “The practice of bonded labor is barbarous and will be abolished. All contracts and arrangements under which services of such bonded labor are now secured will be declared illegal.’ This announcement was followed the promulgation of the Bonded Labor System (Abolition) Ordinance, 1975 which was later replaced by a duly enacted law in 1976.
The main thrust of the 1976 legislation is on the abolition of any form of forced labor. In other words, the practice of bonded labor has been declared illegal and all such laborers have been freed and discharged from any obligation to render bonded labor immediately after the commencement of the Act. The principal features of the Act may be summarized as follows:
The Bonded Labor System stands abolished.
Every obligation to repay any bonded debt or any part of it, if remain unsatisfied, shall be deemed to have been extinguished.
No suits or proceedings shall be brought in the civil court or before any other authority for the recovery of the bonded debts.
Any decree or order for the recovery of the bonded debt shall be deemed to have been fully satisfied.
Any attachment made for recovery of bonded debt shall stand vacated.
Any attachment of movable or immovable property shall stand vacated and such property shall be restored to the bonded laborer.
The bonded laborer shall not be evicted from any homestead land which he is in occupation under any obligation.
Any person who compels another to render any bonded labor shall be punished with imprisonment for three years or fine upto two thousand rupees.
Every offence under the Act shall be cognizable and bailable.
The task of implementation of the provisions of this Act is cast on the District Magistrates. The latter as well as every officer authorized by him has duty to take such action as may be necessary to eradicate the system within his jurisdiction .
The law further envisages people’s cooperation by constituting Vigilance Committees in each district and subdivision by the State Government. The functions of the committee, inter alia, are as follows :
To advice the District Magistrate to ensure that the provisions of the Act and the rules made there under are properly implemented.
To provide for the economic and social rehabilitation of the freed bonded laborers.
To coordinate the function of rural banks and cooperative societies with a view to canalizing adequate credit to the freed bonded laborers.
To keep an eye on the number of offences to which cognizance has been taken under the Act.
To make a survey as to whether there is an offence to which cognizance ought to be taken under the Act.
To defend a suit instituted against a freed bonded laborer
Implementation of the Act:
The passing of the Bonded Labor System (Abolition) Act has not been of much consequence. Very little achievements have been made over the years. As revealed by statistics, upto April 1989, 242618 bonded laborers had been identified. Out of these, 231559 had been released. Only 210091 such laborers had been rehabilitated upto January, 1988 and only 11344 cases had been registered against the keepers of bonded laborers.
Another statistics on child labor states that ‘India has some 44 million workers under the age of thirteen, with 300,000 in the carpet making industry alone…By conservative estimates, there are thought to be at least 5 million children in bonded labor in India’.
A recent incident of brutality perpetrated against bonded laborers caught the attention of the present writers . Herein, a laborer borrowed a sum of Rs. 300 from an affluent person of his village and later repaid the amount with the interest agreed upon. But the lender insisted that he still owed Rs. 150 as interest which the laborer could not pay. To treat him a lesson, few persons, at the instance of the moneylender, poured acid on the laborer and his family, comprising of his wife and son. The three have been admitted to the hospital and is presently undergoing treatment.
The above suggests the prevalence of the system of bonded labor till today. It also illustrates the deplorable condition of the modern day slaves, on the one hand and the extreme apathy and non-committal approach of the governmental officials on the other. As observed by Justice P.N.Bhagwati -
“ The process of identification and release of bonded laborers is a process of discovery and transformation of non-beings into human beings and what is needed is determination, dynamism and the sense of social commitment on the part of the administration to free bonded laborers and rehabilitate them and wipe out this ugly inhuman practice, which is a blot on our national life.”
Judicial Approach:
The problem of bonded labor has also received the attention of the highest court of the land. In Bandhua Mukti Morcha case the Supreme Court expressed dissatisfaction for the indifferent and callous attitude of the Government in handling the problem of bonded labor. It stressed on the need for rehabilitation of the freed laborers and added that the concept of rehabilitation should have the following four features:
a) Psychological rehabilitation must go side by side with physical and economic rehabilitation b) the physical and economic rehabilitation should include all major components like agriculture, animal husbandry, promotion of traditional arts and craft, wage employment, health, education, medical care and protection of civil rights c) the different components of the rehabilitation schemes sponsored by the Central and state governments require integration so as to avoid duplication d) the bonded laborers selected for rehabilitation should have a choice between the various alternatives so that they do not slide back to debt bondage.
Neeraja Chowdhury v. State of Madhya Pradesh is another momentous decision of the Supreme Court. Based on a letter addressed to a judge, narrating the woeful condition of about 135 laborers in the stone quarries of Faridabad, the Supreme Court took serious view of the lax attitude of the State in identifying, releasing and rehabilitating the bonded laborers. It held that- It would be cruel to insist that a bonded laborer in order to derive the benefits of the social welfare legislation should have to go through the process of trial with the normal procedure. That would be a totally futile process because it is obvious that a bonded laborer cannot stand the rigidity and formalism of the legal process due to poverty, illiteracy and socio- economic backwardness. Whenever it is shown that a laborer is made to provide forced labor, the court would raise the presumption that he is required to do so in consideration of an advance received by him and is therefore a bonded laborer. The court further pointed out that- it is not enough merely to identify and release bonded laborers, but it is equally and perhaps more important that after identification and release they must be rehabilitated because without it they would be driven by poverty, helplessness and despair into serfdom once again. The Court suggested the following steps to be taken in this regard:- a) the officers appointed should be properly trained and sensitized so that they feel attached to the misery and suffering of the poor b) there should be constant check and supervision over the activities of these officers c) intensive study of the areas traditionally prone to the system of debt bondage should be undertaken by Vigilance Committees with the help of social action groups.
Social Engineering, Social Justice And Bonded Labor System- An Impact Analysis
“ Looked at functionally, the law is an attempt to satisfy, to reconcile, to harmonize, to adjust…overlapping and often conflicting claims and demands, either through securing them directly and immediately or through delimitation or compromises of individual interests so as to give effect to the greatest total of interest or to the interests that weigh most in our civilization with the least sacrifice of the scheme of interest as a whole.” Thus law is an instrument which controls interest according to the requirements of the social order. It represents the consciousness of the whole society. Pound viewed law as some ‘ brooding omnipresence in the sky operating outside of particular interests.’
The bonded labor system involves the relationship of the master or employer with his laborer. The interests of two classes of individuals are therefore involved – the employer, who needs laborers to carry out his business or trade, the ultimate motive being to earn more and more profits; and the laborer who needs to satisfy his basic necessities of life. The latter is compelled by circumstances to pledge his life and labor in the hands of the former who, in turn, exploit him to serve his own selfish interests.
This being the picture on one side, on the other stands the society which hopes to bring about a just social order in which life, liberty and equality reign supreme. Infact, all modern societies are founded on these basic pillars of ‘social justice.’ As observed by Justice Krishna Iyer , “ Struggle for social justice throughout the history centred around some demand for equal rights, that is, struggle against slavery, monarchy, economic exploitation etc. The concept of social justice is based on the idea that all men are equal in society without distinction of caste, color, creed.” Since the modern society is in continuous pursuit of this concept of social justice, it strives to bring about a balance or equilibrium between the social interests on the one hand and the individual interest on the other. Infact, it suppresses the individual interest to the extent to which it is in conflict with the larger interest, that is, the well being of the society. Such being the case, the state views the interest of bonded laborers who are deprived of their basic human rights- life, liberty, dignity, as a social interest which must prevail over the interest of employers. As Pound enumerates in his concept of social engineering that laws serve only those interest that conduce to the good of the whole society; similar is the case of bonded laborers who are weak, vulnerable and unable to safeguard themselves against the exploitation by their masters. The state strives to protect their interests in order to achieve social welfare and ensure them the sacrosanct rights of life and liberty and thereby establish a sort of social justice.
Thus it is clear that the state enacts laws to secure the claims or interests of the downtrodden and such laws, in turn, protect the interests of society. The Bonded Labor System (Abolition) Act, 1976 is one such legislation. It has declared the system of bonded labor as illegal and unconstitutional being contrary to the provisions of Art.21 and 23 of the Constitution. It has attempted to free the laborers from the clutches of their cruel masters. The Act has ensured them the freedom of life and work and most importantly, the freedom of choice. The Act has made every possible provision to secure the social interest or the well being of the society by curtailing the narrow interests of the employers and upholding those of the laborers. It has sought to engineer the society towards a new social order where justice, social, economic and political, shall inform all institutions of national life.
Leo N. Tolstoy had once observed- “the abolition of slavery has gone on for a long time. Rome abolished it, America abolished it and we did, but only the words were abolished, not the thing.” In the words of Justice Krishna Iyer, “the great pledge to protect social justice as a fact of national life and underwrite its triple components of equality, dignity and the basic minima of human needs to every Indian was made at the historic hour before midnight when India awoke to Freedom. But the midnight continues and the masses caught in the darkness ask in agony, where is the dawn?” “ Social justice, the ideological signature of our constitution is Vasudhaiva Kutumbakam or Lokah Samasthou Sukhino Bhavatu. But the goal is too far away to be achieved.”
The mere passing of the Bonded Labor (Abolition) Act has not put an end to the miseries of the poor laborers. Even after several years of its passing, the bonded laborers have not become free- socially, economically or psychologically and a large number of them are still found in stone quarries, stone crushers, firms, brick kilns, construction projects etc., working under the most inhuman conditions. Law as a reconciler of conflicting interests and an instrument for the fulfillment of social well-being has failed in its basic objectives. It has also failed to bring about the desired goal of social justice ‘which brings within its sweep the objective of removing all inequalities and affording equal opportunity to all citizens in social affairs as well as economic activities.’
CONCLUDING REMARKS:
The system of bonded labor is amongst the oldest and most pervasive economic institutions prevalent in India. It has survived over ages primarily because of the poverty and caste structure of the society. The central theme of the bonded labor system has been the conflict between the individual employers and the bonded labourers . The interests of the latter class of persons, characterized as primary social interest, have been safeguarded by the State. It has made endeavors to fulfil the claims or demands of the poverty stricken masses and passed the Bonded Labor System (Abolition) Act 1976, which, however, has met with little success. The Supreme Court in Asiad workers case, Bandhua Mukti Morcha etc. also adopted a positive attitude and tried to render assistance to these poor and deprived laborers so that they can come out of the clutches of their masters. But yet the goal is far fetched. Mere passing of laws is probably not sufficient to eradicate the social evil. A multi- dimensional or holistic approach is needed to tackle the problem. First, suitable alternatives of employment should be generated by the Government so that the poverty stricken people are not compelled to opt for a life of servitude. Secondly, the administration should be more vigilant and feel their social commitment for freeing and rehabilitating the bonded laborers. Thirdly, there is the need of involvement of social action groups operating at grass root level in the task of identification and release of bonded laborers. This should be backed by strong political will. Constant check and supervision over the activities of officers charged with the task of rehabilitation of bonded laborers is another important step in this regard. Fourthly, education is an important vehicle of social change. Compulsory education should be provided to the laborers or workers. It would make them aware of their rights and benefits- that they are entitled to various benefits under the social welfare laws. Fifthly, judicial activism through public interest litigation could be used as a useful medium to liberate the downtrodden and provide a new ethos in the judicial system. Lastly, legal aid clinics run by young lawyers and senior law students should be started for the deprived sections of people in society.
The destination is yet to be reached. It is far away and the nation has a long way to go before it reaches the ultimate goal of social justice- a new just social order where all the competing interests of society will converge and meet to produce a greater good- the good or happiness of the entire state. The achievements till now are only the early steps towards redemption of the social justice tryst with destiny: this is not the end- it is not even the beginning of the end; but it is perhaps the end of the beginning .
Bonded Labor: Conceptual Analysis:
According to the Statesman Dictionary- Labor under Bondage has been defined as “ a legal deed by which a person engaged himself and his representative to fulfil specific condition or pay money.” The Royal Commission on Labor (1931) has defined it as follows- “ The labor borrows money from the landlord under a contract to work until the debt is repaid. The debt tends to increase rather than diminish and the man, and sometimes his family, is bound for life”.
The Bonded Labor System (Abolition )Act 1976 has defined the term to mean-“ A laborer who incurs or has or is presumed to have incurred a bonded debt.” It is a system of forced labor under which the debtor enters into an agreement with the creditor to the effect that he would render, by himself or through any member of his family or any person dependant upon him, labor or service to the creditor for a specified period or for an unspecified period, either without wages or for nominal wages, or
• Forfeit the freedom of employment in other means of livelihood for a specified period or unspecified period or
• Forfeit the right to move freely throughout the territory of India or
• Forfeit the right to appropriate or sell at market value any of his property or product of his labor or that of a member of his family or any person dependant on him.
The National Sample Survey Organization (June, 1977) has viewed bonded labor as
“working with an employer under obligation but work not specifically compensated by any wage/ salary.”
The above definitions reveal that a bonded laborer has virtually no bargaining power. He has no right to refuse to work except under the terms set by his master. He can neither quit nor take up work of another employer. By virtue of economic compulsions or customary needs, the bonded laborer is tied to his master and subject to his whims and fancies. As pointed by the apex court of the country “ They are non- beings, exiles of civilization living a life worse than that of animals, for the animals are at least free to roam around about as they like and they can plunder or grab food whenever they are hungry, but these outcasts of society are held in bondage, robbed of their freedom and they are confined to an existence when they have to live either in hovels or under the open sky and be satisfied with whatever little unwholesome food they can manage.. Not having any choice they are driven by poverty and hunger into a life of bondage to a dark bottom less pit in a cruel exploitative society from which they cannot hope to be rescued.”
Constitutional and Statutory Prohibition:
The Constitution of India, a humane document which directs every organ of the state to strive for the fullest development of the personality of every individual , enacts in Art 21 that- “ No person shall be deprived of his life and personal liberty except according to the procedure established by law.’
The fundamental right to life has many attributes. It includes the right to live with human dignity, and all that goes along with it, namely, the bare necessities of life viz, adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about, mixing and commingling with fellow human beings, right to protect against torture or cruel or inhuman treatment. In Maneka Gandhi v. Union of India the Supreme Court held that the expression ‘personal liberty’ is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and includes the right to eat or sleep when one likes or to work or not work as and when one pleases and several such other rights.
Art 23 of the Constitution deals with Right against Exploitation. ‘Exploitation’ means the utilization of person for one’s own ends. It is opposed to the dignity of the individual, to which the preamble of our constitution refers. It is also opposed to the Directive Principles of State Policy, for example, Art 39(e) and (f) which provides respectively that the state shall ensure that the health and strength of workers, men and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter into avocations unsuited to their age or strength; that childhood and youth are protected against exploitation and against immoral and material abandonment.
Art 23(1) prohibits traffic in human beings and beggar and other similar forms of forced labor and provides that any contravention shall be an offence punishable in accordance with law.
The word ‘begar’ has not been defined in the Constitution but it may be defined as ‘labor or service exacted by government or a person in power without giving remuneration for it.’ The word ‘other similar forms of labor’ has been held to include every form of forced labor and it makes no difference whether the person who is forced to give his labor or service to another is remunerated or not.
In Bandhua Mukti Morcha v. Union of India , Justice Bhagwati classified bonded labor under Art 23. The learned judge stated, ‘The system of bonded labor stood prohibited by Art 23 and there could be no more solemn and effective prohibition than the one enacted in the Constitution.’
To give the Constitutional provisions a true shape, it was essential that the Government enacted a law so as to put an end to this gruesome system of exploitative labor. The most sincere attempt came on July 1, 1975 when our late Prime Minister, Smt. Indira Gandhi, in her 20 point program stated- “The practice of bonded labor is barbarous and will be abolished. All contracts and arrangements under which services of such bonded labor are now secured will be declared illegal.’ This announcement was followed the promulgation of the Bonded Labor System (Abolition) Ordinance, 1975 which was later replaced by a duly enacted law in 1976.
The main thrust of the 1976 legislation is on the abolition of any form of forced labor. In other words, the practice of bonded labor has been declared illegal and all such laborers have been freed and discharged from any obligation to render bonded labor immediately after the commencement of the Act. The principal features of the Act may be summarized as follows:
The Bonded Labor System stands abolished.
Every obligation to repay any bonded debt or any part of it, if remain unsatisfied, shall be deemed to have been extinguished.
No suits or proceedings shall be brought in the civil court or before any other authority for the recovery of the bonded debts.
Any decree or order for the recovery of the bonded debt shall be deemed to have been fully satisfied.
Any attachment made for recovery of bonded debt shall stand vacated.
Any attachment of movable or immovable property shall stand vacated and such property shall be restored to the bonded laborer.
The bonded laborer shall not be evicted from any homestead land which he is in occupation under any obligation.
Any person who compels another to render any bonded labor shall be punished with imprisonment for three years or fine upto two thousand rupees.
Every offence under the Act shall be cognizable and bailable.
The task of implementation of the provisions of this Act is cast on the District Magistrates. The latter as well as every officer authorized by him has duty to take such action as may be necessary to eradicate the system within his jurisdiction .
The law further envisages people’s cooperation by constituting Vigilance Committees in each district and subdivision by the State Government. The functions of the committee, inter alia, are as follows :
To advice the District Magistrate to ensure that the provisions of the Act and the rules made there under are properly implemented.
To provide for the economic and social rehabilitation of the freed bonded laborers.
To coordinate the function of rural banks and cooperative societies with a view to canalizing adequate credit to the freed bonded laborers.
To keep an eye on the number of offences to which cognizance has been taken under the Act.
To make a survey as to whether there is an offence to which cognizance ought to be taken under the Act.
To defend a suit instituted against a freed bonded laborer
Implementation of the Act:
The passing of the Bonded Labor System (Abolition) Act has not been of much consequence. Very little achievements have been made over the years. As revealed by statistics, upto April 1989, 242618 bonded laborers had been identified. Out of these, 231559 had been released. Only 210091 such laborers had been rehabilitated upto January, 1988 and only 11344 cases had been registered against the keepers of bonded laborers.
Another statistics on child labor states that ‘India has some 44 million workers under the age of thirteen, with 300,000 in the carpet making industry alone…By conservative estimates, there are thought to be at least 5 million children in bonded labor in India’.
A recent incident of brutality perpetrated against bonded laborers caught the attention of the present writers . Herein, a laborer borrowed a sum of Rs. 300 from an affluent person of his village and later repaid the amount with the interest agreed upon. But the lender insisted that he still owed Rs. 150 as interest which the laborer could not pay. To treat him a lesson, few persons, at the instance of the moneylender, poured acid on the laborer and his family, comprising of his wife and son. The three have been admitted to the hospital and is presently undergoing treatment.
The above suggests the prevalence of the system of bonded labor till today. It also illustrates the deplorable condition of the modern day slaves, on the one hand and the extreme apathy and non-committal approach of the governmental officials on the other. As observed by Justice P.N.Bhagwati -
“ The process of identification and release of bonded laborers is a process of discovery and transformation of non-beings into human beings and what is needed is determination, dynamism and the sense of social commitment on the part of the administration to free bonded laborers and rehabilitate them and wipe out this ugly inhuman practice, which is a blot on our national life.”
Judicial Approach:
The problem of bonded labor has also received the attention of the highest court of the land. In Bandhua Mukti Morcha case the Supreme Court expressed dissatisfaction for the indifferent and callous attitude of the Government in handling the problem of bonded labor. It stressed on the need for rehabilitation of the freed laborers and added that the concept of rehabilitation should have the following four features:
a) Psychological rehabilitation must go side by side with physical and economic rehabilitation b) the physical and economic rehabilitation should include all major components like agriculture, animal husbandry, promotion of traditional arts and craft, wage employment, health, education, medical care and protection of civil rights c) the different components of the rehabilitation schemes sponsored by the Central and state governments require integration so as to avoid duplication d) the bonded laborers selected for rehabilitation should have a choice between the various alternatives so that they do not slide back to debt bondage.
Neeraja Chowdhury v. State of Madhya Pradesh is another momentous decision of the Supreme Court. Based on a letter addressed to a judge, narrating the woeful condition of about 135 laborers in the stone quarries of Faridabad, the Supreme Court took serious view of the lax attitude of the State in identifying, releasing and rehabilitating the bonded laborers. It held that- It would be cruel to insist that a bonded laborer in order to derive the benefits of the social welfare legislation should have to go through the process of trial with the normal procedure. That would be a totally futile process because it is obvious that a bonded laborer cannot stand the rigidity and formalism of the legal process due to poverty, illiteracy and socio- economic backwardness. Whenever it is shown that a laborer is made to provide forced labor, the court would raise the presumption that he is required to do so in consideration of an advance received by him and is therefore a bonded laborer. The court further pointed out that- it is not enough merely to identify and release bonded laborers, but it is equally and perhaps more important that after identification and release they must be rehabilitated because without it they would be driven by poverty, helplessness and despair into serfdom once again. The Court suggested the following steps to be taken in this regard:- a) the officers appointed should be properly trained and sensitized so that they feel attached to the misery and suffering of the poor b) there should be constant check and supervision over the activities of these officers c) intensive study of the areas traditionally prone to the system of debt bondage should be undertaken by Vigilance Committees with the help of social action groups.
Social Engineering, Social Justice And Bonded Labor System- An Impact Analysis
“ Looked at functionally, the law is an attempt to satisfy, to reconcile, to harmonize, to adjust…overlapping and often conflicting claims and demands, either through securing them directly and immediately or through delimitation or compromises of individual interests so as to give effect to the greatest total of interest or to the interests that weigh most in our civilization with the least sacrifice of the scheme of interest as a whole.” Thus law is an instrument which controls interest according to the requirements of the social order. It represents the consciousness of the whole society. Pound viewed law as some ‘ brooding omnipresence in the sky operating outside of particular interests.’
The bonded labor system involves the relationship of the master or employer with his laborer. The interests of two classes of individuals are therefore involved – the employer, who needs laborers to carry out his business or trade, the ultimate motive being to earn more and more profits; and the laborer who needs to satisfy his basic necessities of life. The latter is compelled by circumstances to pledge his life and labor in the hands of the former who, in turn, exploit him to serve his own selfish interests.
This being the picture on one side, on the other stands the society which hopes to bring about a just social order in which life, liberty and equality reign supreme. Infact, all modern societies are founded on these basic pillars of ‘social justice.’ As observed by Justice Krishna Iyer , “ Struggle for social justice throughout the history centred around some demand for equal rights, that is, struggle against slavery, monarchy, economic exploitation etc. The concept of social justice is based on the idea that all men are equal in society without distinction of caste, color, creed.” Since the modern society is in continuous pursuit of this concept of social justice, it strives to bring about a balance or equilibrium between the social interests on the one hand and the individual interest on the other. Infact, it suppresses the individual interest to the extent to which it is in conflict with the larger interest, that is, the well being of the society. Such being the case, the state views the interest of bonded laborers who are deprived of their basic human rights- life, liberty, dignity, as a social interest which must prevail over the interest of employers. As Pound enumerates in his concept of social engineering that laws serve only those interest that conduce to the good of the whole society; similar is the case of bonded laborers who are weak, vulnerable and unable to safeguard themselves against the exploitation by their masters. The state strives to protect their interests in order to achieve social welfare and ensure them the sacrosanct rights of life and liberty and thereby establish a sort of social justice.
Thus it is clear that the state enacts laws to secure the claims or interests of the downtrodden and such laws, in turn, protect the interests of society. The Bonded Labor System (Abolition) Act, 1976 is one such legislation. It has declared the system of bonded labor as illegal and unconstitutional being contrary to the provisions of Art.21 and 23 of the Constitution. It has attempted to free the laborers from the clutches of their cruel masters. The Act has ensured them the freedom of life and work and most importantly, the freedom of choice. The Act has made every possible provision to secure the social interest or the well being of the society by curtailing the narrow interests of the employers and upholding those of the laborers. It has sought to engineer the society towards a new social order where justice, social, economic and political, shall inform all institutions of national life.
Leo N. Tolstoy had once observed- “the abolition of slavery has gone on for a long time. Rome abolished it, America abolished it and we did, but only the words were abolished, not the thing.” In the words of Justice Krishna Iyer, “the great pledge to protect social justice as a fact of national life and underwrite its triple components of equality, dignity and the basic minima of human needs to every Indian was made at the historic hour before midnight when India awoke to Freedom. But the midnight continues and the masses caught in the darkness ask in agony, where is the dawn?” “ Social justice, the ideological signature of our constitution is Vasudhaiva Kutumbakam or Lokah Samasthou Sukhino Bhavatu. But the goal is too far away to be achieved.”
The mere passing of the Bonded Labor (Abolition) Act has not put an end to the miseries of the poor laborers. Even after several years of its passing, the bonded laborers have not become free- socially, economically or psychologically and a large number of them are still found in stone quarries, stone crushers, firms, brick kilns, construction projects etc., working under the most inhuman conditions. Law as a reconciler of conflicting interests and an instrument for the fulfillment of social well-being has failed in its basic objectives. It has also failed to bring about the desired goal of social justice ‘which brings within its sweep the objective of removing all inequalities and affording equal opportunity to all citizens in social affairs as well as economic activities.’
CONCLUDING REMARKS:
The system of bonded labor is amongst the oldest and most pervasive economic institutions prevalent in India. It has survived over ages primarily because of the poverty and caste structure of the society. The central theme of the bonded labor system has been the conflict between the individual employers and the bonded labourers . The interests of the latter class of persons, characterized as primary social interest, have been safeguarded by the State. It has made endeavors to fulfil the claims or demands of the poverty stricken masses and passed the Bonded Labor System (Abolition) Act 1976, which, however, has met with little success. The Supreme Court in Asiad workers case, Bandhua Mukti Morcha etc. also adopted a positive attitude and tried to render assistance to these poor and deprived laborers so that they can come out of the clutches of their masters. But yet the goal is far fetched. Mere passing of laws is probably not sufficient to eradicate the social evil. A multi- dimensional or holistic approach is needed to tackle the problem. First, suitable alternatives of employment should be generated by the Government so that the poverty stricken people are not compelled to opt for a life of servitude. Secondly, the administration should be more vigilant and feel their social commitment for freeing and rehabilitating the bonded laborers. Thirdly, there is the need of involvement of social action groups operating at grass root level in the task of identification and release of bonded laborers. This should be backed by strong political will. Constant check and supervision over the activities of officers charged with the task of rehabilitation of bonded laborers is another important step in this regard. Fourthly, education is an important vehicle of social change. Compulsory education should be provided to the laborers or workers. It would make them aware of their rights and benefits- that they are entitled to various benefits under the social welfare laws. Fifthly, judicial activism through public interest litigation could be used as a useful medium to liberate the downtrodden and provide a new ethos in the judicial system. Lastly, legal aid clinics run by young lawyers and senior law students should be started for the deprived sections of people in society.
The destination is yet to be reached. It is far away and the nation has a long way to go before it reaches the ultimate goal of social justice- a new just social order where all the competing interests of society will converge and meet to produce a greater good- the good or happiness of the entire state. The achievements till now are only the early steps towards redemption of the social justice tryst with destiny: this is not the end- it is not even the beginning of the end; but it is perhaps the end of the beginning .
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