PEOPLE'S UNION FOR DEMOCRATIC RIGHTS AND OTHERS versus UNION OF INDIA & OTHERS

The learned J:idge proceeded to explain the scope and ambit ,of the expression 'involuntary servitude' in the following words :

p. 489, margin A

"The. plain intention was to abolish slavery of whatever name and form and all its badges arid incidents, to render impossible any st~te of bondage ; to make labour free by prohibiting that control by which the personal serviye of one men is disposed of or . coerced for another's benefit,

p. 489, margin B

which is the essence of involuntary servitude." . Then, dealing with the contention that the employee in that case voluntarily contracted tO' perform the service wpich was sought to compelled and there was therefore no violation· of the provisions the Thirteenth Amendment, the .learned Judge observed :

p. 489, margin B

"The fact that . the debtor contracted to perform the . labour which is sought to be compelied does not withdraw the attempted enforcement from the condemnation of the statute. The full intent of ihe constitutional provision'Could be defeated with obvious facility if through the guise 'of . contracts under· which advances had been made, debtors. could be held to compulsory service. It i~ the compulsion of the service that the statute inhibits; for when that occurs, the condition of servitute is created which would: be not less involuntary because of the original agreement to ·work out the indebtedness. The . contract exposes the debtor to liability for the loss due to the breach, but not to enforced

p. 489, margin D

18.bour."· and proceeded to ehiborate ibis thesis by pointing out :

p. 489, margin F

' "Peonage is sometimes classified as voluntary or 'invo-· luntary, but this implies simply a difference in~ the mode of origin, but-none in the character of the servitude. The one "exists - where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some. provision of 'law. But peonage however created, is compulsory service, involuntary servitude. ·The · peon can release himself therefrom, it is true, by 'the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of Jabour or rendering of services in payment of a debt. In the latter case the debtor though contracting to· pay his indebtedness by labour of service, and subject· like any other contractor to an action for damages for. breach of that contract, can elect at any time to·break it, and no law or force compels performance or a continuance

pp. 489–490, margin F

of the service." · It is therefore clear that even if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidation of debt or even remuneration, he cannot be forced by compulsion of law or otherwise to continue to perform such service, as that would be forced labour within the inhil;>itian of. Article 23c -·This Article strikes at every form of forced labour. even if it has its origin in a contract voluntarily entered into by the person obligated to provide Jabour or service Vide Pollock v. Williams.(') The reason is that it offends against human dignity to compel a person to provide labour or service to another if he does. not ,wish to do so, e~n, though it be in breach of the contract en_tered into by him. There should be serfdom or involuntary servitude in a free democratic India which respects the dignity of tbe individual and the worth of the human person. Moreover, in a country like India ·where there is so much poverty and unemployment and there is no· equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced-with Robson's choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold th~ employee in_ such a case to·the terms of the contract and to compel him to serve ihe employer even though he may not wish to do so. That would aggravate the inequality and injustice from which the employee eve_n otherwise suffers on account of his economically disadvantaged position and leild the authority of law to the exploitation of the poor helpless employee by the economically powerful employer. Article 23 therefore says that no one shall be ·forced to 322 U.S. 4:88 Lawyers Edition 1095. provide labour or service against his will, even though it be :under _a =ontract of service.

pp. 490–491, margin B

Now the next question that arises for consideration is whether there is any breach of Article 23 when a person .provides labour or service to the State or to any other person and is paid less than the minimum wage for it. · It is' obvious that ordinarily no one would willingly supply labour or service to another for less than the mini· mum ·wage, when he knows that under the law he is entitled to get -minimum wage for the ·Jabour or service provided by him. It may therefore be -legitimately presumed· that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compuision which drives him to work though he is paid Jess than what he is entitled ui\der law to receive. What Article 23 prohibits is 'forced labour' that is labour or service which a person- is forced to provide and 'force' which would make such labour or service 'forced labour' may arise in several .ways. It may he physical force which may compel.a person to provide labour- or service to another or it may pe force exerted through '! legal provision such as a· provision for imprisonment or fine in case the employee fails .to provide labour or service or it may even be_ compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternatives and compels him .to adopt one particular course of action may properiy be regarded as 'force' and if labour or service is compelled as a result of such 'force', it would we 'forced labour'. Where a person is suffering from hunger or starvation, when he bas no resources at ail to fight disease or fe_ed bis wife and children or even to hide their nakedness, where utter grinding poverty bas broken his ·back and reduced him to a state of helplessness and ·deSPair and where no· other employment is available to alleviate the rigour of his poverty, he would have no choice but to acceept .any work that comes hims way, even if the remuneration offered to him is less than the !Ilinimum wage.· He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not _;is a free agent with a choice between alternatives but J!Dder the cpmpulsion of economic circumstances and the Jabour or service provided by him would be clearly 'forced Jabour.' There is no reason why the word 'forced' should be read in a narrow and .restricted manner so. as to be confined only to physical or legal 'force' particularly when the national charter, its fundamental document has promised to build a new soc.ialist republic where there will be socio-economic justice for all and every one shall have the right to work, to education and to adequate means of livelihood. The constitution makers have given us one of the most remarkable ,documents in history for ushering in a new socio-economic order and the .Constitution w bich they have forged for us has a social purpose and an economic mission and therefore every word or phrase in the Constitl!tion must be interpreted in a manner which would advance the socio-economic objective of the Constituti0n. It is ncit unoften that in· capitalist society economic circumstance exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision. The word 'force'. must therefore-be construted to i!Jclude not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide Jabour or service even though the remuneration received for it is less than . the minimuni wage of course, if.a P.,rson provides labour or service to another against receipt of the minimum wage, 'it would not be possible to say that the labour or service provided by ])im is 'forced . Jabour' because he gets what he is entitled under law to receive. No inference can reasonably be drawn in . such a case that ·he is forced to. provide labour or service for the simple ~eason that he would be providing labour or service against receipt of what is lawfully payable to him just like any other person who is not under the force of any compulsion. We are therefore of the v,iew that where a·person provides labour or ser:vice to another for remuneration which is less than the minimum wage, the labour or service provided by him cleariy fafls within the ;scope and ambit of the words 'forced labour' under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right tinder Article 23 by asking the· court io direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied. It is' therefote clear that when the petitioners alleged that minimum wage was not paid t.o the workmen employed by the contractors, the complaint was really in effect and substance a compl!lint against violation of the fundamental r.ight of the workmen under Article 23.

pp. 491–492, margin A

Before leaving this subject, We may point out with all the emphasis tit our command. that whenever any fundamental right, which is enforceable against private individuals such as, for example· a fundamental right enacted in Article 17 or 23 or -24 is being violated; it is the constitutional obligation of the State to take the · necessary steps for the purpose ·of' ,interdicting such violatioQ and ensuring observance of tbe·fundameotal ·right by the private .iodivi· dual who is transgressing the. same. Of course, the person whose fundamental right is violated can always approach the court- for the purpose of ~nforcemeot of his fundamental right, but that cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental righL,.of such person,· particularly· ivheo he belongs to the weaker section humanity 'and is unable to , wage a legal 'battle against a strong .and powerful opponent who. is . exploiting him. The Union of India, the Delhi AdmioistratiOn and the Delhi Development Authority must therefore be held to be under an obligatioo'fo ensure <;>bservance of these various labour laws·by the contractors and if the provisions ·Of any of these labour laws are violated by the contractors, the petitioners indicating the cause of the workmen are entitled to enforce this obligation against the Union of India, the Delhi Administration and the Delhi Development Authority by· filing the present writ petition. The preliminary objections urged on behalf of the respondents must. accordingly be rejected.

p. 493, margin A

Having disposed of these preliminary objections, we may tnm· • to consider whether there was any violation of the provisions of the Minimum Wages Act 1948, Article 24 of the Constitution, the Equal Remuneration Act 1976, the Contract labour (Regulation and Abolition) Act 1970 and 'the Inter State Migrant, Workmen (Regulation of Employment and Conditions of Service) Act ·1979 by the contractors. The Union !Jf India in its affidavit in reply ·admitted that there were. certain.violations, committed by the contra· ctors but hastened to add that for these violations prosecutions were initiated against the errant contractors and no •violation of any of the labour .laws was allowed togo unpunished. The Union of India 'also conceeded in its affidavit in reply that Re. I/· per worker per ·day was deducted by the jamadars from the wa:ge payable to the workers with the result that the workers did not -get the minimum wage of Rs. 9.25 per day, but stated that proceedings had been taken for the purpose of recovering the amount of the snort fall in minimum wage from the contractors. No particular~ were however S;ven of such . proceedings adopted by/ the Union of India or the Delhi Administration or the Delhi DevClopment Authority. It was for this reason that we directed by our order dated 11th ·May 1982 that whatever is the minimum . wage for the time being or if the wage payable is higher than· such wage, shall be paid by the contractors to the workmen directly without the intervention of the jamadars and that the jamadars shall not be entitied to· deduct or recover any amount from the minimum wage payable to the workmen as and by way of commission or otherwise. He would als.o direct in additio.n that if the .. Union of India or the Delhi Administration or the Delhi Develop· ment Authority finds and for !his purpose it may hold such i.nquiry as is possible in the circumstances that any ·of the workmen has not received the minimum wage payable to him, it •.hall take the necessary legal action against the contractrs. whether by way of__, proesC1,1tion or by way of recovery of the amount of the short-fall. , · We would also suggest. that ,hereafter whenever any contracts are given . by. the. government' or any other. governmental authority including a public sector corporation, it should be ·ensured by intro· · ducing a suitable provision in the contracts that wage shall be.paid · by the contractors to the workmen directly without the intervention of any jamadars or, thekadars and th.at the contractors shall ensure .that no· amount by ·way of commission or otherwise is deducted or recovered by the Jamadars from the wage of the workmen. So far as · observallce of the other labour laws by the contractors is concerned, · the Union of India, the' Del hf Administration and the Delhi Develop· meut Authority disputed the claim of the. petitioners that the provi· sions of these labour laws wel'ci not being implemented . by the contractOrs save in -few instances where prosecutions bad _been launched agai11st the contractors. Since it would not be possible for this Court . to take evidence for ·the purpose of deciding this factual dispute between_ the parties and ·we also wanted to ensure . that in any event the provisions of these various laws enacted for the ·benefit of the workmen were strictly observed and implemented by the contractors, we by ciur order dated 11th· May 1982 appointed , · three Ombudsmen and requested them to make periodical inspectio~s of the .sites of the construction work: for the purpose of ascertaining whether the provisions of these labour laws were being carried out. and the. workers were receiving the benefits and amenities provided for them ·under these beneficient statutes or . whether the"re were ariy . violations of. these provisions being committed by tile contractors ·so that on the basis of the reports of. the three, Ombudsmen, this Court could give further direction in the matter if fo~nd necessary. We may add that,whenever any construction work is being carried out either departmentally or through contractors, the government or any other - governmental authority including a public sector corporation which is carrying out such work must take great care to see that the provisions of the labour laws are being strictly observed and they should not wait for any c,;mplaint to be received from the work~en in regard to nonobservance of any such provision before proceeding ~.to• take action against the erring olllcers or contractor, but they · should institute an effective,system of periodic inspections .coupled with occasional surprise inspe~tions by the higher officers in order ·to ensure that there are no violations of the, provisions of· labour laws and the workmen are not denied the rights _and benefits to which they are entitled under such provisions ahd if any such violations are found, immediate action should be taken against defaulting officers or contractors. That is the .least which a government or a governmental authority or a public sector corpo~ation ·is expected to do in a social welfare state .

pp. 493–495, margin E

These are the reasons for which . we made our Order dated 1 Ith May 1982. S.R. Petition allowed.

p. 495, margin D