Chennai: With Madras high court recently striking down section 21 of the Bonded Labour System (Abolition) Act, 1976 and also dismissing the review petition of the Central Government, DC talks to experts to know the real scenario that led to this landmark judgment.
Talking about the section which conferred powers of a judicial magistrate on an executive magistrate, advocate David Sunder Singh points out that Article (50) separation of power is the basic structure and not following it, would amount to dictatorship.
The executive magistrates are under the control of state government whereas the judicial magistrates have no political godfathers to be obliged to.
Besides, the executive magistrates hardly have any legal background and do not have the proper infrastructure to try a case. So it is better cases are left to the judicial magistrate.
He goes on to explain, “This act was enacted in 1976 during the time of the Emergency. The Central government wanted to grant judicial powers to the executive. They brought this Act under the 9th schedule, which doesn’t allow for judicial review. But the SC says that even if you are placing an act within the safety valve, it has to pass two tests. The court can interfere on two grounds: one if it violates fundamental rights and two if it violates the basic structure of the Indian Constitution.”
David explains, “This section violates Art 14 of the Constitution (equality before law) as for an offence committed under Sec. 370 of the IPC, the victim goes to the sessions court but for a similar offence under the BLA Act, the case is tried by the executive magistrate. The article also violates Art 21 of the Constitution as fair trial is contained within the right to life (Article 14 of the Constitution).”
Vidyasagar, ex- child protection specialist with the Unicef, believes that the entire act should be scrapped and a new law framed.
“When the BLSAA Act came into being, it focused on bonded labour in the agricultural sector. If we look at the situation now, bonded labourers can be found in the modern sectors too. Like the Sumangali scheme where scores of girls are brought in with the assurance of money after the end of the 3-year contract, for use for their weddings. These girls come from other districts and even states like Orissa and Bihar. They are made to stay in the textile mill compound and aren't paid even the minimum wages. They have no fixed working hours, they work for 10/15 hours a day and are not permitted to use cellphones or keep contact with their families. Their movement is restricted and they are also subjected to sexual abuse. So this is a clear case of bonded labour but there is no provision to treat these kind of bonded labour cases.”
Talking about RDOs, sub-divisional magistrates and sub-collectors trying cases, he says, “Most of them are in favour of the employers. They are insensitive to labourers. And in many cases, it is difficult to convince the RDO and the tahsildar to come for identifying a case of bonded labour. It should be the labour department doing the identifying and rescue work,"” he said.
M.A. Britto, director, Vanmohil, is also on the same page. He says, “Executive magistrates are influenced by local interests and are not proactive.”
