Judical Action to end Bonded Labour - Human Rights Commission ...

While the fact that as a federal law the Act of 1992 prevailed over any provincial law
was evident, the court examined the argument that the Sindh Tenancy Act of 1950 was not
applicable to the two appellants, and expressed the view that ìin the absence of a finding as
to the existence of a tenancy under the Sindh Tenancy Act the Bonded Labour System
(Abolition) Act, 1992 would be fully applicable to the caseî.
As for the question of conflict between the two laws under reference, the court made
a detailed examination of the Sindh Tenancy Act, 1950, and came to the conclusion that
ìthere could be no justification for forcing him (a tenant) to work against his will in flagrant
violation of his fundamental rightsî. The plea that the High Court was wrong in assuming that
every detenue was a permanent tenant of the respective landlord was accepted.
Taking up the appellantsí argument that the High Court was required to examine
each petition under Article 199 of the constitution and Section 491 of CrPC on merits, the
court stressed the fact ìthat the writ of habeas corpus, which is of ancient origin, as
distinguished from other prerogative writs, is one of right and not mere discretionî. The
petitions could not be dismissed (by the High Court) on the ground that alternative remedies
were available. The court rejected the attempt to make a distinction between private custody
and public custody and quoted the Supreme Courtís observation in Abrar Hasan vs
Federation ìthat even if a judge of the Supreme Court were to illegally confine his domestic
servant for misbehaviour, a writ of habeas corpus would lie against himî.
Finally, the court elaborated upon the powers of the judiciary under the Pakistan
constitution and held that ìany form of restraint on liberty is actionable both under Article 199
of the constitution and Section 491 CrPCî.
This landmark verdict quashed quite a few arguments that were adopted by landlords
to evade their responsibilities under the Bonded Labour System (Abolition) Act, 1992, and
perpetuate the exploitation of their workers as bonded labour.
These judicial verdicts also ended the controversy that the bonded labour in
agriculture had to be treated differently than those working at brick-kilns.
In the first case (Darshan Masih vs State) the Supreme Court dealt with brick-kiln
workers as they were the only petitioners. The reports by various friends of the court offered
a fairly complete picture of the bonded labourís exploitation at brick-kilns. The authors of
these reports did not fail to call for legislation and policies aimed at eliminating bonded labour
in all spheres of life.
The second Supreme Court decision was given in a case born out of agriculture
workersí exploitation as bonded labour in Sindh. Neither in this judgment nor in the impugned
Sindh High Court judgment the condition of bonded haris was discussed.
The plight of these bonded haris began to attract public attention in the 1990s when
HRCPís Special Task Force at Hyderabad discovered large bodies of bonded labourers at
agricultural farms. Here too whole families were engaged in labour, wages were extremely
low, a vicious system of peshgi was in force, and women/children were often subjected to
sexual abuse. As in the case of brick-kiln labour the pesghi amount kept rising and the haris
could never hope to pay it back. The bonded haris were not allowed to move away from their
thatched jhuggies and force was used to restrain their movements. Many cases of labourers
being kept in chains or confined to prison-like quarters came to light. Also widely reported
were instances of bonded labour being bought by landlords, who needed extra labour, by
paying the previous ëownerí the peshgi amount due from them. The labourers who escaped
from the places of detention were captured, often with the help of the police or private
militias, and tortured.
When HRCP activists started securing the bonded harisí release through reports to
the police and habeas corpus petitions, the landlords took the plea that the bonded haris
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