Both the police and the judiciary conveniently ignore the physical restraint and abuse of these labourers. In many cases, in fact, the police assists in recovering runaway labourers and handing them over to agents of the employers or even implicate them in false cases. Police is bound to treat bonded labour as a crime.

It was not before 1990 when the issue of bonded labour came to public attention. Darshan Masih, a brick kiln labourer realized that his fundamental rights were being violated. The Chief Justice of Pakistan received a telegram from him, which detailed the situation of the bonded labourers’ captivity and other issues.

It was the first case of its kind in the judicial history of Pakistan, the Chief Justice had remarked.

The case was pursued by none other than human rights lawyer Asma Jahangir and in a landmark judgment the Supreme Court ruled that a bonded labourer could approach the court for help through informal means – even a telegram. It was also declared that the form of work at a brick kiln was forced labour and that the court in its original jurisdiction could enforce the fundamental rights of the labourer.

The case paved the way for the Bonded Labour Abolition Act 1992.

During the hearing the court initiated a police inquiry to free the detainees. While the court directed that forced and bonded labour be treated as the same, it also talked about the need to define forced labour in further legislations and erase the ambiguity.

The court also deeply criticized the traditional system of advance payments known locally as ‘peshgi’. This was the reason why the labourers became in debt for life, as they were bound to the loan given. It was directed that the system of loan payment should be regulated under the Contracts Act, which curbs financial exploitation, and banned peshgi from being used in the financial transactions.

The Court also held that past transactions of peshgi must be dealt with in a legal manner. Because there had never been any other laws on bonded labour, the court advised the parliament to draft legislation so that fundamental rights of workers could be protected.

Because of this law, several cases since then have been brought to various courts and decided upon. But the intent of the law has been restricted to text only. The reality of the day is that bonded labour is still rampant, and workers’ rights are still being violated. A large number of labourers remain oppressed and the system of peshgi is still running.

Part of the problem comes from the law itself.

The definition of ‘bonded labour system’ given under Section 2(e) of the Act is vague and imprecise as it does not take into account an array of customary and non-customary practices which amount to bonded labour.

The other problem is implementation. Failure of the police and the lower judiciary is a major factor in the persistence of bonded labour. At times the police is complicit in protecting the perpetrators of this crime and the judges in courts do not go beyond setting the bonded labourer at liberty.

Both the police and the judiciary conveniently ignore the physical restraint and abuse of these labourers. In many cases, in fact, the police assists in recovering runaway labourers and handing them over to agents of the employers or even implicate them in false cases. Police is bound to treat bonded labour as a crime. Penalties must be put in place to punish those police officials who fail to take into account instances of physical and sexual abuse meted out to bonded labourers.

Implementation

All workplaces, including brick kilns and agricultural farms, must be registered with the Government and monitored for any violations of labour law.

Labourers should have access to complaint cells at district level to report any violation of their rights. The punishment and fine set in Section 13 of the 1992 Act must be increased to reflect the seriousness of the offence. The Government must also set practical minimum wages for all forms of labour. A pay slip or receipt must be issued for all labourers which would help in showing their pay on paper, and so that workers may keep track of their debts, if any.

Importantly, a minimum age limit must be set and immediately enforced so that no child is forced into labour.

A big reason for the failure of the Act has been that the employers, if they may be called that, have always been resistant to and have never complied with the law.

In 2006, the Brick Kiln Owners pushed a case before the Federal Shariat Court challenging certain provisions of the Bonded Labour System Abolition Act demanding they be declared un-Islamic.

The petitioners argued that the statute was not in accordance with the original directions given by the Supreme Court. They quoted Islamic sources of Quran and Hadith, declaring that the peshgi and jamadari systems were not against Islamic injunctions and were therefore permissible.

But the Federal Shariat Court held that it was “fully satisfied that the Act was passed by the legislature strictly in line with the directives of the Supreme Court.” It referred to the Act as “a beneficial statutory of vital importance.”

The Court also referred to Islamic jurisprudence and maintained that “forced labour was repugnant to Islam in the extreme,” and that peshgi was “exploitative by nature and in violation of the injunctions of Islam.”

The court also pointed out that almost every day reports appeared in the national press, about unlawful detention of labourers and their families working in different brick kilns and about the inefficiency of the administration in abolishing bonded labour under the Act of 1992.

In its lengthy judgment, the Supreme Court summarized that the Bonded Labour Abolition Act was applicable to all employed in agriculture (other than those enjoying rights as tenants under the Sindh Tenancy Act); that even an undertaking by a tenant to work without remuneration especially one which is less than the stipulated amount would be unenforceable; that any instance of wrongful detention or forced labour would lie on the landlord; the person detained would be entitled to restoration of his or her liberty and freedom of movement – the only difference would be in the proof of tenancy. The landlord would be entitled to recover the debt through normal legal channels only.

It also ruled that there was no requirement of law that stricter scrutiny of a petition regarding detention in private custody is to be made before issuing appropriate directions.
Nevertheless in cases where the right to keep a person in private custody is claimed on the basis of some authority in law, the court may require that such right be adjudicated upon in properly held proceedings before the appropriate forum before issuing directions under section 491, CrPC.

The Punjab Prohibition of Child Labour at Brick Kilns Act 2016

It is important to note that some provisions of this Provincial Legislation are inconsistent with the provisions of Bonded Labour System (Abolishing Act, 1992), as well as Darshan Masih case, and the Federal Shariat Court case and the 2009 Judgment of Hon’ble Supreme Court of Pakistan.

It is about time the provincial governments take these issues seriously. After all the lives of thousands of people are at stake, their futures bleak, and their fundamental rights violated.

Ali Qazilbash is an advocate of the High Court and a professor of law. He is the former chair of the School of Law at LUMS.