“I pleaded before him several times and said my wife may
die due to lack of medication but he remained cruel. I had no money and was
worried. I thought to run away but his men were around watching me so could not
run away. At least my wife too died. We were crying and trying to wake up my
wife but she didn’t. She died weeping in pain. Whenever I remember those days I
weep and fear from inside. I had to give my wife improper cremation since I
could not buy adequate wood for her. My two sons who had lost their mother and
sister were also weeping.
I was broken and could not even support emotionally my
sons. It was due to the brick kiln owner that my daughter and wife were not in
this world. He was responsible for what has happened. The unburnt portion of
the body was being eaten by dogs and I was thinking about my poverty. Had the
brick kiln owner given the labour charge both would have been living with us.
As we came back the owner showed no humanity and both my sons were put to job
without even having anything to eat. I too started work but spending every
moment at that brick kiln was a pain. I thought had I not come here my wife and
daughter would have been alive”. (From the testimony of 50 years old Patiraj Musahar who spent his
whole life working as bonded labour in brick kiln factory).
This is not only single self-suffering of Patiraj Musahar but
thousands of bonded labours like Patiraj faced unkindness while demanding their
wages and making the final clearance.
Bonded labour is the worst form of human
rights violation and contemporary form of slavery. It is violation of Right to
Life, Right to Equality, Right to individual dignity, which are more
important. Landless poor, agricultural
labourers, some artisan those having no employment are the main victims of this
system. Workers employed therein are members of Schedule Caste (SC),
Schedule ST and minorities who are mostly non-literate and non-numerate and do
not easily understand the arithmetic of loan/debt/advance and the documentary
evidence remains with the creditor and its contents are never made known to the
debtor.
The provision contained in Article 23 of the constitutional
prohibits all forms of forced labor including beggar. It makes no difference
whether the person who is forced to give his labour or service to another is
remunerated or not. Even if remuneration is paid labour supplied by a person
would be hit by Article 23. If it is forced labour i.e. service has been
rendered by force or compulsion. Article 23 strikes at all forms of forced
labour even if it has its origin in a contract voluntarily entered into by the
person obligated to provide labour or service.[i] But the legislation
defining and banning bonded labour was approved by parliament in 1976. The
Bonded Labour Abolition Act, 1976 stipulates that the monitoring of labour
violation and their enforcement are responsibilities of state.
Living Condition: A number of
workers were not allowed to leave the brick kiln premise and were providing
forced labour. Living conditions at brick kilns are very basic labours lives in
jhuggies (hut) with bricks piled upon one another as walls and straw covering
the top which did not afford any protection against sun and rain. These are
like hovels where one has to sit to enter and they are unable to stand. Generally,
size of hut is 4 x 5 with height of 4 feet is provided to each family. In this
small room they have to manage their kitchen and keep their things. In the room
while sleeping workers cannot stretch their leg while sleeping and this is more
problematic for the pregnant mother. In the morning while getting out of the
hut pregnant mother face unbearable pain while stretching their body and it
also creates complication for them.
The provisions of ventilation,
drainage, lighting and even drinking water, Sanitation facilities are absent.
Workers have to relieve themselves in the open and also female worker had to
bath in open. Absence of adequate
privacy, particularly for the married women workers also breeds psychological
stress.
The Employer Unions and their
representatives linked with brick kiln industry have also signed a Code of
Conduct to ensure proper documentation of the workers and basic facilities at
worksite. As a part of Code of Conduct they will help and facilitate education
of children of the workers, opening of Bank Account, availability of clean and
safe drinking water. But there is no implementation of code of conduct in brick
kiln:
- Only one hand pump are in brick kiln to quench the thirst the average of 70 bonded labour excluding their next kiln.
- No crèches for children below 5 years. But there is not statistic of children in the brick kiln with their parent.
- No construction of room in brick kiln owner and children are drop out.
- No facilities of health service.
Women condition: Though
women workers comprise about one-half of the total work force in every brick
kiln. Women workers are deprived of all statutory benefits
and amenities like maternity benefits, creche, fixed working hour etc. The health and the dignity of the women is
entirely neglect at the brick kiln the female worker face sexual abuse and
violence and health facilities are completely neglect there.
Women experience violence
because they are women, and often because they do not have the same rights that
men do. No woman in a brick kiln is exempt from violence and exploitation. In
the worst situation at kilns, women are raped or economically forced or left
with little choice but to serve as sex slaves.
The clerk takes advantage of
the situation because drinking water and fuel (wood) are near to his office.
While availing these facilities the female worker are abused by the clerk “You
take the wood and in return you will give nothing.” The brick kiln is not only
to earn for the livelihood but it is to enjoy with the women (From
testimony). This inhuman act of clerk increases the domestic violence within
the family. When these women share the incidence to their husband then they are
subject to the domestic violence and this conflict provides opportunity to
clerk for making women worker as sex slaves. .
The pregnant mothers leave the
work and brick kiln a day before delivering a child. Till then they did not get
relieve in the work and even ill-treated by the brick kiln employers with
abusive words such as you will deliver a child as a bitch (Kutiya biyan ke
tarah baccha paida karbu). After 15 days of delivering a child mother had to
return back to their work.
As far as social security and
development is concerned of female workers in brick kiln factory they are far from
attaining benefit under janani suraksha yojana (JSY). During the time of
pregnancy they are not immunized and did not get iron pills. The ANM (Auxiliary Nursing Mother) and Asha
never visit to their brick kiln. The mothers
had to leave the job for a day and carry her children for many kilo –meters for
getting immunized their children in hospital. Due to lack of medical facilities
Kila Musahar lost her 3 years old child.
Children: Integrated Child Development Services (ICDS) Government of India sponsored programme, is India's primary social welfare
scheme to tackle malnutrition and
health problems in children below 6 years of age and their mothers.
Its programme for the three-to six years old children in the
anganwadi is directed towards providing and ensuring a natural, joyful and
stimulating environment, with emphasis on necessary inputs for optimal growth
and development.
Children between age group 0-6 years spent 9 months along with
their mother in the brick kiln industry. The employment opportunity is
helplessness of the parents to stay in the brick kiln in the absence of social
service. The pressure of more productivity does not provide time to mother to
take care of their small children. The small children are compelled to nurture
their childhood in worst inhuman condition.
I with my small children haul
the bricks from early morning 4 am to noon and 2 pm to 6 pm. The ration I get
from PDS shop was only sufficient to feed the family for 10- 12 days. So, to
overcome the shortage of food more than half a month we eat half stomach food.
My children drive the loaded sagadi (trolley) and adult push it. We strive hard
in heat waves and when we feel hungry then we drink sip of water and console
ourselves. In that condition I keep my two small children (Melhu and Rani) near
to the way I pass so, that every time I have eye on them.
When I pass in front of them
looking me Melhu and Rani used to cry for food. Feeling the hunger of the
children I holding the tear started to concentrate in the work and think after
hard labour we are unable to get full stomach food.
Meanwhile both children crawl
and come in the way due to the fear of clerk and to complete the work
assignment I beat them and make again to sit on that place. I tried to
concentrate on work but every time hungry and crying face of children stuck to
my mind.
Slowly – slowly Rani became
malnourished and I take her to the nearby doctor but I saw no improvement in
her condition. At last I took her to primary health center in Pindra where
doctor advised to give nutritious diet to her. I have no penny to feed her. I took advance from brick kiln owner and
again take her to hospital where doctor said your daughter is so weak and it is
impossible for her to survive and during treatment Rani died. (from testimony of
Kamla)
Children
in and around the brick kiln areas are drawn into labour as they tend to help
their parents by arranging the bricks for drying and collecting the broken and
improperly moulded bricks.
Due to the tenancy system the women and children are not counted as worker. It
is trend by the employers to show men as employees and it provides opportunity
to escape from ensuring the service to women and children. Once they get older, they are drawn into
the trade, having being trained at a young age. This age group is the most
vulnerable to exploitation and abuse. The National Policy of Children 2013
declares that all children from 0 to 18 years need to be protected and provided
with all the facilities of health, education, nutrition and protection.
Under
the Right to Education Act, 2009 it is responsibility of the Government school
situated near to the brick kiln and also Government school in their home town
to enrolled these migrant children. But due to the lack of awareness it
nurtures to create a bulk of labour. Indian childhood: How to grow without
perspective.
Trafficking: Trafficking
of children (half of whom are between 11 and 14 years of age) and women is a
plague of the poor. Trafficked children are subjected to physical and sexual
abuse and treated as slaves, with debt bondage being one of the many tools
employed to trap children into perpetual servitude.
Radha (name changed), who is originally from
a tribal community in Jharkhand state, is among India's vast population of
trafficked children, who are especially vulnerable to sexual abuse.
I was with my family when a woman called
Shanti visited us and told me to come with her. She was from the same village
so I trusted her. She said she was going to take me to a fair. But this woman
had tricked me and forced me to go to the brick kiln factory. There I had to
work for the owner, doing his cooking and cleaning, and also massage him. Two
days after I arrived he forced himself on me. He used to give me a tablet, then
he would force himself on me. My room was next to where the owner worked and
every time he wanted me, he would come to my room. He would come two or three
times a day. I told that woman Shanti that I didn't like it, and she said that
“If you tell anyone, the owner will kill you.” One day I opposed it, and the
owner beat me up brutally. I was so scared. The brick kiln owner was in his
sixties, had no teeth, used to drink a lot, and force me to drink alcohol as
well. When I refused, he used to hit me. I'm still in pain from the rapes.
Wages: The wage rates vary
from one brick kiln to another starting from Rs. 250 to as high as Rs.
350 for making 1000 bricks. In a day a couple with the help of their children
makes 1000 of bricks. Now the record for making brick in a day is kept with
clerk before that worker used to get copy.
In the weekend they Rs. for food and other necessities and final
settlement done in the end of season. In between urgency the brick kiln owner
doesnot pay a single penny I pleaded before him several times and said my
wife may die due to lack of medication but he remained cruel. I had no money
and was worried. I thought to run away but his men were around watching me so
could not run away.
Most of the workers do not
receive final settlement by the brick kiln owner while demanding their
remaining amount they faced torture and threat
Working
hours: The brick kiln doesnot have fix working hours
in summer they work for the whole night and in winter throughout the day. They have one day weekly off on that day they
take bath and buy the necessary things from Market. During the peak season they
are forced by the brick kiln owner to work for the longer time. Sometimes we work 16
hours a day, between 4 am and 8 pm“. The
labour at the brick factory is exhausting. All the more tragic is the fact that
even the children work at the factory.
Rescue
and Rehabilitation:
Everything had been fine there
for initially 3 months. One day, Santara aged about 7 years daughter of Bholu,
one of the labourers, got ill. Bholu asked for money for her medicine. Then the
owner said the he had no money. He asked Bholu to do his work and began to beat
him. The owner had drunk and beat Bholu so heavily that he got seriously
injured.
But he continued his work, and
when he got his weekly wage then went for medical treatment of his daughter.
But health condition of Santara got deteriorated as she had been suffering from
fever. Again I, along with Bholu went to the owner and told to him that her
daughter had been suffering from fever for last 3 days and requested him to
give some money. Having heard this owner abused us and asked us to do our work.
We felt insulted and wanted to quit the work but we could not do that because
the owner has employed a person to watch us that we could not go away. The
owner used to threaten us very often. He used to threaten by saying “If you
people try to run away, I will throw you in the brick kiln.” He used to abuse
our women, using filthy language. We were in great difficulties and looking for
a chance to get away from there.
When the incident of atrocities
increased, one day at 3.am early in the morning we decided to leave the place.
We went on foot 8 km. to reach Ayar Bazaar. From there we went to Pindra.
During this time we were so frightened that even today we can’t forget it. For
two days without eating anything we were hiding ourselves. Then a men from our
community, told our story to a local leader and he gave us shelter for two
days. Meantime we tried to phone a number of persons. First of all we contacted
Santosh patel who provided us with the telephone No. of Station Officer of
phulpur police station and S.D.M. we contacted them but nobody came forward to
help us. One activist of PVCHR assured us not to be worried and asked us to
come to Tehsil on Tehsil Divas. But we were afraid of the brick kiln owner and
told him if the owner would see us he would beat us and would take us to the
brick kiln by force. Then he came to us and after knowing the facts he
complained with concerned officials. Then we went to our house but we were
afraid of a heavy attack on us by the brick kiln owner.
Even after one month of our
complaint, the owner continued to search us out. Whenever he used to come to
our village by his vehicle, we used to run away from our homes. Two persons
among us always used to watch whether or not any vehicle of brick kiln owner
coming into village. In the morning when we used to wake up again the fear of
brick kiln owner haunted us. But after one month when we met with the District
Magistrate, Varanasi and complained with him in written about our problem now
there is a relief. But whenever we think or talk about our sufferings we feel
headache and seems that everything is moving around us. When we remember the
threatening of the brick kiln owner or when we see the brick kiln owner we feel
numb.
We went to Tehsil and told our
difficulties to the S.O. of Phulpur police station. Having heard everything
from us and after knowing about the owner, he assumed us to go home to live
without fear. After few days some policemen came to our Basti and talked with
our women and then they told us to make compromise, otherwise we would have to
face problems. When we came back to our community we were informed of the
police threatening. We are still living under fear and have been deprived of
employment.(From
testimony of Ram Dayal)
Sometime few bonded labour managed to escape from the brick
kiln factory
but it takes a long to attain the release
certificate after identification and release and there is no effective,
meaningful and permanent rehabilitation of these labours. They pillar to post to
get rehabilitation amount of 20, 000/- and due to the apathy from the
administration and there condition remained vulnerable.
After eight year continuous on 23-11-2008 the SDM of
Varanasi had given order to release us from bonded labour. I received a copy
of order of court. A copy such order was sent to police station Adampur. So the
SHO made a call for Altafurrahman. At this two men of Altafurrahman came to me
and took me to his gaddi. By abusing me He forcefully made me to put my signature
on stamp. He threatened me he will make me homeless and my family helpless. He
also admonished me that I have teenage daughter. He warned me to think about my
all family. Hearing this I became afraid and signed over stamp. My statement
had been taken in the CO office in Kotwali and police station Adampur.
Today I am free. However he threatens me. Presently I am working according to my will. If I got rehabilitation compensation I will set up my own loom and bring raw material, so that I can start my traditional occupation. Now family is feeling very happy. I am feeling unlimited pleasure after telling you my story and I feel internal relief. Now I believe that there is someone who cares for deprived and poor people like me (From testimony of Amirullah). Amirullah father Sidiqullah died but he did not receive rehabilitation amount of 20,000/-
The gap between identification and
release on the one hand and release and rehabilitation on the other is clear
and pronounced. On account of such a gap, freed bonded labourers lapse back to
the vulnerable condition.
The
influence and muscle power of brick kiln owner are main reason hurdle for
identification, rescue and rehabilitation, which is coming due to caste system
of India.
After
looking me he started to abuse me by using filthy words "I will throw off
you and human rights". S.O slapped me and gave his mobile to call Mahatim.
When I was taking with him, Arvind Yadav snatched the phone and started to
abuse him, "you became the father of Human Rights, you have grown up, you
became a leader". S.O also abused him you became a Human Rights Officer
bigger officer than me. I stayed in police station for two hours and during
that time I do the cleaning of the police chowki.
Around
5 pm Arvind Yadav took me to him house and show me his small gun and said, your
father is not caught and used abusive words. He took me to his aunt house and
closed me in a room, where food grain was stored. Around 11 pm in the night an
old lady gave me mat. There was no light in the room. I cannot sleep whole
night due to fear.
Next
day morning around 5 am Arvind Yadav came and take me to do the work and again
closed me in the room after 6 pm. That time he only gave me food to eat. He
asked me to ease in the same room.
Next
day i.e. 9th April, 2012 morning they took me to Saidpur
district court and took my thumb print in blank paper. Around 1 pm I return and
again got engaged in the work.
On
10th April, 2012 when I was working he called me and gave his
mobile to talk with my father and ask for 2 lakhs rupees. Meanwhile he started
to beat me and phone got disconnected. After beating me again he ranged
and abused my wife Guddi and threat I will also see Mahatim. Now our rule has
come and Government is also our.
Again
he took me to the same labour officer and took my statement that my father took
advance of 2 lakhs rupees and said he will hand over me to the office of Human
Rights.
Both
Arvind and Pappu Yadav park the car near to the PVCHR office and after half an
hour they returned. After sitting in car they gave threat to me. When we all
started to move Gazipur then I saw the galley of PVCHR office and I jump from
the running car and rush to PVCHR office. When the owner came to PVCHR office
and did not find me then they return back. (Testimony of Tinku Musahar)
The state Government will draw
up within three months from 16th December, 1983 a scheme or
programme for rehabilitation of the freed bonded labourer in the light of the
guideline set out by the secretary (L), GOI in his circular letter dated
02.09.82.[ii]
Not only these survivors require
rehabilitation to cope with a host of emotional, physical, and psychological
needs, they also face economic difficulties. But most of them do not even have
a proper place to live, and live in slum dwellings without access to water,
electricity, or sanitation etc.
Challenging the impunity through breaking the silence is
based on eliminating the fear, phobia, hopelessness and fragmentation of the
survivors in empathetic safe and secure environment. Their fragmented story changed into
consolidate story which convince district administration to grant the release
certificates
The release certificate is not only a
legal document for the physical release of the survivors but it is dignity after receiving
release certificate from ADM (Administration) Varanasi Siddiquillah took a long
breath of relief and state “I will not die as a bonded labour”.
The Bonded Labour System (Abolition) Act,
1976-- provided punishment for compelling a person to engage in bonded labour.
In addition to the prescribed punishment for forcing persons into bonded
labour, the act by a declaration frees everyone from bonded labour and
prohibits contractual agreements, facilitating bonded labour and continuation
or extension of any pre-enactment agreement of similar nature.
PVCHR initiative:
PVCHR started its foundation journey from 1996
to work on the child labour free village and in 2002 the founder and CEO of
PVCHR was appointed as member of District Vigilance committee on Bonded Labour
under Bonded Labour abolition Act 1976 by the Governor of UP. PVCHR
adopted child labour free village Indrawar of Harhuwa block and on 1st may 1996 this village
was declared as child labour free village in presence of Pharis Harvey of ILRF,
USA, Ms. Abigail Abros of RFK Memorial center for Human Rights (Rastriya Sahara, 27
March 1996) with four prolonged interventions.
In last two and half year PVCHR released and rescued 243 bonded labours[iii], in continuation of released nearly three thousand bonded labour by PVCHR. All released bonded labour belongs to Dalits, tribal, OBCs and minorities communities. So, elimination of slavery of bonded labour is eliminating of caste system, fascism, communalism and patriarchy.
Psycho-social and legal support to survivors
PVCHR provide psychological and
other direct assistance to the survivors. The survivors are able to
transform ones private pain into a political campaign, this contributed to the
breaking of the culture of silence and brokenness of the survivors. They are
transformed as human rights defenders. The TT's nature of honouring the victims
in society becomes the driving force for the victim to pursue ones case and
become survivors and human rights defenders in the process. As a survivor one
could manage to reclaim his/her voice. Survivor became empowered and become a
defender for the fellow victims who still may not overcome his pain and
suffering.
After
honor ceremony the survivors expressed their satisfaction with the process and
this ritual apparently became a “turning point” in the healing process. Seemingly the ceremonial element represented
the social recognition needed. It re-connected the survivors with their
community and ensures that their private truth became part of social memory.
The ceremonies are organized as follows:
- At public demonstration in front of Government Head Quarters
- At “Folk School” meetings – popular schools for the poor and marginalized meetings
- At community center’s meetings in the villages
- At street plays & singing
- Peoples’ tribunals that is hearing bringing attention to critical human rights issues
- At Religion institution (for creating broader solidarity)
- At forum for survivors[iv]
Meta Legal Intervention[v]:
Complaints in standard complaint format from victims of TOV are taken by trained Human Rights workers. Torture victims needing assistance go to one of the worker associated with PVCHR where their complaint is recorded on a standard complaint sheet. Thereafter this complaint is drafted into letter by the Human Rights workers afterwards sent to the relevant government authorities such as the Senior Superintendent of Police, District magistrate, the headquarters of the police officers in the relevant province and also to the Human Rights Institutions at provincial and national level.
The same letter is forwarded to the PVCHR central office. Afterwards Central office of the PVCHR contacts the relevant Human Rights worker which have sent the letter, gets further information and thereafter writes the complains as a petition as meta legal intervention or an Urgent Appeal in urgent matter and sends it to regional organizations such as Forum Asia and international organizations such as frontline, OMCT, FIDH, Amnesty international etc by email. The PVCHR also drafts letters for the relevant UN Rapporteurs and other UN agencies and informs them about the incident. The PVCHR also appeal to the local government authorities and Human Rights Institutions at national and provincial level. In urgent cases, PVCHR releases Urgent Appeal [vi](UA).UA is created a lot of pressure on Government from national and international level.
In cases involving female victims, exceptional care will be taken to ensure that the victims are handled by human rights defenders and lawyers from the same sex. The network group has already evolved solidarity strategies to keep the victim away from public curiosity during court hearings by accompanying the victim to the court or to the police stations. Care will also be given for separate testimonial therapy of the victim by experts who are aware of the gender sensitivity in the issue.
Legal intervention:
In past, PVCHR has filed cases of public importance before High Court under the Article 226 of the constitution on the basis of violation of the fundamental rights, particularly violation of Article 21 which guarantees rights against torture cruel and inhuman treatment and punishment under right to life.
Medical support to Victims of TOV
PVCHR provides medical assistance to many bonded labour because ften victims are re-victimized at the time of treatment.[vii] In order to avoid this and if circumstances warrant, support will be provided for victims to undertake medical treatment to treat their injuries. However, it doesn't mean that the project will provide medical treatment to all survivors.
The situation warrants utmost care in case of women victims. Often hospitals can be a place of further persecution for women victims. Corruption in the system and the lack of proper understanding of psychological trauma, often poses the risk for a woman victim being subjected to sexual abuse, insults at the hospital.
Protection
& solidarity
Protection
The PVCHR has over the years
developed its own means of providing protection to the victims. This was
necessitated by recurring and increasing threats to the victims, their family
members and other witnesses. As of today, there are no witness protection
mechanisms in India. Witness and victim protection has at no time been a matter
of priority or concern for the state or for any state institutions, in
particular the court. Often requests for protection are turned down by the
court.
Prevention of torture is not
possible without strong action being taken up by the network for the protection
of victims and the human rights defenders. Given the extremely serious threats
that exist for the victims of torture, the witnesses and human rights defenders
protection is an important component of this project.
Protection of victims has been
done in the past by various activities. PVCHR will continue to provide shelter,
accompanying victims to courts and police stations, staying along with the
victim, relocating victims to neighboring areas, issuing repeated public
appeals, working closely with good police officers and seeking protection from
court are a few examples to narrate.
Solidarity:
“Solidarity is not a matter of altruism. Solidarity comes
from the inability to tolerate the affront to our own integrity of passive or
active collaboration in the oppression of others, and from the deep recognition
of our most expansive self-interest. From the recognition that, like it or not,
our liberation is bound up with that of every other being on the planet, and
that politically, spiritually, in our heart of hearts we know anything else is
unaffordable." - Aurora Levins Morales[viii]
The most important knowledge
is what difference it matters for people ‘we should inspire people – they want
to be ‘heros’ in their own life story’ through process of testimonial / honour
ceremonies of testimonial therapy. With a view to create
solidarity across social and economic boundaries, PVCHR has also been
successful in organizing ceremonies with victims of different types of violence
i.e. victims of bomb blast, police torture, bonded labor, domestic violence.
These victims have represented different casts, gender and religion.
PVCHR
is developing the block level and village level organization building process
in formal way to 50 percentage participation of women in leadership through
leadership development process[ix] as united solidarity to fight back TOV in sustain way as independent
peoples’ action. Leadership building training, Kajari Mahotsav, Door to door
campaign and Neo Dalit movement are major activities of united solidarity
movement. United solidarity movement is fighting back the roots cause of
torture and organized violence and for economic development.
Economic empowerment is
enhance the access of marginalized communities on Governmental schemes,
services related to food security such as Rural Employment Guarantee Act
etc and common property resources through
breaking the silence, eliminating the fear, organization building based on imparting knowledge, education and
building solidarity based on one for all and all for one.[x]
The Kajari Mahotsav[xi]
facilitates the elimination of the caste feeling as both the upper and lower
caste are able to participate together. Women folk school on neo – dalit became
a great opportunity to unite on the basis of reconciliation, democracy,
secularism and non – violence. By the end of the process, people lighted up the
candles to usher the forging of unity of the people who experienced brokenness.
It is the unity against the caste system - the historical system of exclusion.
It is also a unity of all poor from all communities against suffering[xii].
PVCHR
understands the value of TT for creating understanding and public solidarity.
The soft narrative of the victims is used to create compassion and emotional
support. The voices of the victims are in the written narratives and are
brought to the policy makers. The well written TT stories are like ‘soft
feelings’ in comparison with the legal urgent appeals and it is documented to
hereby contributing to a positive reaction by an otherwise unsupportive Indian
media. Even international media has taken up the TT stories. The TT stories were
also during the recent UPR review of India.
Rehabilitation
of community:
The mushars residing in Mahadev Nagar Mushar ghetto in village Sakra,
block & jurisdiction Rampur, Madiyaho in Jaunpur district work in the brick
factory near the village, which is owned by one of the landlords. PVCHR adopted
that village with the support from Global Fund for Children and started first
Pre- primary center (PPC) and Non – Formal Center (NFE) and started Mid –Day
meal in centre of two rooms constructed in the land of Mahatim Musahar. Their
first generation started to go to school.
The Musahars of Sakara basti are
associated with many government schemes such as Lohiya Gramin Awas Yojana, children are enrolled in Government
school, ration card etc.
The migrant workers are giving guardianship of their
children to their parents or relatives. For the sustainable development of the
community pumping set for irrigational water was established and distribute seed.
It is noted that Musahar of Sakara received 7 acre land and which was made
fertile with the support of organization.
Sarai is successful example of sandwich model of PVCHR. One
hand grass – root level breaking of the culture of Silence and eliminating the
fear through and legal support and pressure from ground, PVCHR with the support
from Dignity Danish Institute Against Torture adopted this village in 2010.
The different Labour Laws
applicable to the brick kilns.
Factories Act, 1948
The question as to whether
brick kilns can be registered as factories under the Factories had been
examined. It has been established that the process of manufacturing bricks
comes within the definition of the manufacturing process as defined under the
Factories Act and that the premises where the process is carried on, is covered
by the expression “Premises” used in the
definition of factory in the Act.
Payment of Gratuity Act
The provisions of this Act
apply to all establishments, which are factories within the definition of the
factory in the Factories Ac. The brick kiln workers come within the purview of
the Gratuity Act wherever the brick kilns factories are located and are
entitled to all benefits under that Act subject to the condition regarding
completion of a specified period as stipulated in the Gratuity Act.
Payment of Bonus Act
The provisions of this Act
apply to every factory within the definition of the Factories Act and every
other establishment in which twenty or more persons are employed on any day
during the accompanying year. Brick kiln workers working in such factories or
establishments are entitled to the benefits under this act.
Employment Provident Fund
and Miscellaneous Provisions Act
Brick kiln was added as a
scheduled industry within the purview of the E.P.F and M.P. Act with effect
from 27.11.80.As per the provisions of this act the brick kilns that employ 20
persons and above would therefore covered as establishments whom the provisions
of the Act and the schemes framed there under would apply. Workmen who are
employed in a brick kiln establishment and render 60 days of work within a
total employment period of 90 days would be enrolled as members of Provident
Fund, family pension fund and employees deposit link insurance fund.
Employees State Insurance
Act
The provisions of this Act are
extended area-wise and were applicable to 471 areas when the tripartite
committee met.
Inter-State migrant workmen
(Regulation of Employment and Conditions of Service Act), 1979
The Act applies to every
establishment in which 5 per cent or more interstate migrant workmen are
employed or were employed on any day of the preceding 12 months. Since most of
the brick kiln establishments employ inter-state migrant workers, i.e., workmen
who are recruited through agents/sub-agents of the owners numbering 5 and
above, they will come within the purview of the Act. The workmen so recruited
will be entitled to all the welfare measures and statutory benefits. They are
as follows:
Journey allowance; payment of
wages for the period of journey as if such period was on duty;
Displacement allowance @50
per cent of he monthly wage payable or Rs75/- whichever is higher, (this is a
one time payment);
Residential accommodation as
may be prescribed, and
Medical aid including
hospitalization, as may be prescribed, reporting of cases of accident causing
injury etc as have been provided under the Act.
Contract Labour (Regulation and Abolition)
Act, 1970 with Central Rules, 1971 The brick kilns, which are getting certain
jobs, processes or operations in the establishment performed by or through
contractors who are employing 20 and above workmen, will come within the
purview of the Act. The brick kiln owners will be required to obtain registration
certificate U/S 7 of the Act.
The contractors will be
required to obtain license U/S 12 of this Act.
Minimum Wages Act
Employment in brick kilns has
been notified as a scheduled employment under the Minimum Wages Act by most of
the State Governments and after issue of the notification, minimum rates of
wages (both daily and piece rated) have also been notified.
The biggest lacunae in this
framework is that the brick kilns themselves have not been considered as
factories and as part of the formal sector and therefore its owners are not
entitled to any benefits as industrialists.
At the tripartite meeting all the acts were
discussed and the different views of the trade union, the state government and
the brick kiln owners federation were debated (Report of the Tripartite
Committee on Brick Kiln Industry, A committee constituted by the Government of
India, Ministry of Labour and Rehabilitation (Department of Labour), New Delhi,
31 July, 1984). However the discussions remained unresolved, as no formal
measures have been adopted as yet and there is as yet no law or act that
pertains to the brick kiln industry alone. Such a law/act is much awaited both
by the trade unions as well as the brick kiln owners.
Legal and administrative
framework for women
While women constitute a
significant part of the workforce, they lag behind men in terms of level and
quality of employment. Work participation rate of women in India increased from
14.22 per cent in 1971 to 19.67 percent in 1981 and further to 22.73 per cent
in 1991. The majority of women workers continue to be employed in rural area
where 87 per cent are involved in agriculture as labourers and cultivators.
Among the women workers in urban areas, about 80 per cent are employed in the
unorganised sectors like household industries, petty trade and service and
construction.
While number of labour laws that are in the
statute book is very large, it is inadequate to confine attention to only a few
of them. This is for the reason that quite a large number of labour laws are
sex-neutral, as for example, The Industrial Disputes Act 1947, and the Payment
of Bonus Act 1965. There are a few laws like the Factories Act 1948, Mines act
1952, and the Plantations Labour Act 1951, where there are special provisions
relating to hours of work, restrictions on employment and the like in respect
of women workers.
Lastly there are two laws,
which have been enacted specially with the women workers in view, and these are
the Equal Remuneration act 1976 and the Maternity Benefit Act 1961.
An important feature of the various labour
laws, relating to social security, welfare, safety and working conditions,
employment or dispute resolution, is the existence of employer employee
relation and the consequent need to define an employer and an employee. This is
for the reason that for the purpose of employment or provisions of benefits,
the law places the responsibility on the employer, who for that reason has to
be identified precisely. But in respect of the large mass of women workers in
the unorganized sector, either the employer keeps on changing frequently as in
construction work, where assured employment for a minimum number of days in the
year is itself in doubt, or there is no direct relationship with the ultimate
employer as in the case of occupations where the only point of contact for the
workmen is only of a low level intermediary.
The basis criticism, validly
labeled against the labour legislation in the country is that while there may
be scope or need for improving the contents of law, these laws are ineffective
in so far as there is inadequate or in more than ten no enforcement of these
laws takes place. The enforcement machinery is inadequate and a worker is
expected to find redress independently through other agencies namely the unions
who if they take up the matter resorts to the legal procedure. Few individual
workers can even dream of affording such an elaborate procedural channel
deterrents are duration, expense, harassment, lack of knowledge about the
procedure, the legal jargon, and all the other disadvantages that go with being
poor and illiterate. The provisions of the law are not clear and precise,
making it a battleground for legal interpretation in the hierarchy of tribunals
and courts. Penalties are inadequate and participation of the workers in the
enforcement of the law is totally absent. The adjudicating machinery and the
magistrate are quite often indifferent if not hostile to the aspirations of the
working people.
The Minimum Wages Act 1948
This is by far the most
relevant and important piece of legislation for the unorganized sector, as the
whole scheme of the Act is designed to give a modicum of protection to workers
in the unorganized sector industries. The Act, as it stands now, merely
provides, inter alia, a mechanism for fixing and revising minimum rates of
wages but does not give any guidelines as to the basis on which the minimum
ages are to be fixed or revised. This has been the subject matter of
considerable criticism and discussion over the years. At present, minimum rates
of wages fixed in respect of jobs that are included in the schedule. Section 27
of the Minimum Wages Act, 1948, empowers the appropriate government to add
employment to the schedule by notification after prior publication.
Notwithstanding the fact that
each government has been periodically adding employments to the schedule, there
may still remain certain employments that are not added to the schedule.
Even where the employment is added to the
schedule, there may be time lags in the fixation of minimum wages for that
employment and under the scheme of the Act other benefits of the Act will also
not accrue to the workers by mere scheduling but only after minimum rates of
wages have been fixed. So to ensure that wages at an irreducible minimum level
is payable to anyone who works, a national or at least a regional minimum rate
of wages should be fixed which will have to be periodically revised and made
widely known through the media. The medium that can reach out to the widest
audience especially the working class is the radio and some thought may be
given to developing community radio stations.
Maternity Benefit Act 1961
One of the points often urges
as the reason for the decrease in employment of women is the incidence of
Maternity benefits and the consequent reluctance of the employer to hire women
workers. It is not as though the average expenditure incurred as maternity
benefits is very large; one report as quoted in Shram Shakti Report pointed out
indicates that in 1977-78 the average expenditure per woman worker in factories
ranged from Rs1.31 to Rs 4.54 per year an absurdly low sum- but even so, one
can visualize a psychological, if not financial barrier in the minds of the
employer in recruiting women as employees.
Equal Remuneration Act
1976
Despite the Act being in the
Statute book for decades, it is seen that the practice of paying lower rates of
wages for the same or similar work still persists. The provisions of the Act
are still not widely known and the women interviewed almost accepted their
lower wages for the same work as custom and have not questioned it even though
they were aware of their lower wages for the same or similar work. In some
cases the employers confuse this Act with the provision of Minimum Wages. The
main purpose of the Equal Remuneration Act has been to ensure payment of equal
remuneration to men and women workers in an establishment doing same or similar
work.
There have been suggestions that equal
remuneration must be payable for doing work of equal value. While this seems an
attractive proposition, measuring value of work and equating them is a far more
difficult task that identifying same work or work of similar nature. While this
expression has been defined in Sec2 (h) of the Act, even then no one notices a
tendency to categorize tasks generally done by women as being of a slightly
inferior nature, warranting lower rates of wages. One notices this even in
fixation of minimum rates of wages, where in notifying wages under the Minimum
Wages Act 1948, in some notifications work is classified as “light work usually
done by women” and “heavy work usually done by men”.
To avoid this, it will be
perhaps advantageous if a group of activities in any industrial occupation are
broad banded into one category, on the basis of enquiries and study, so that
the present situation is remedied. As pointed out by the Supreme Court, the
term does not mean work which is identical in all respects, but work which can
broadly be considered to be the same or similar in nature to other work. The
broad guidelines contained in Sec2 (h) of the Act should be spelt out in more
precise terms in respect of each category of notified establishments and the
result made widely known to all employees and workers.
Another purpose of this Act
(and in this respect the Act is a great advance on the ILO Convention No.100 on
Equal Remuneration), relates to avoidance of discrimination on ground of sex
against women in the matter of employment. This will include, not merely
initial recruitment but also stages of one’s employment including promotions.
In order to enable adequate
number of qualified women to fill up jobs from which they are usually
discouraged because of lack of formal skill development, there is a need to
extend reservation of seats for women in training institutions like Industrial
Training Institute and in programmes like apprenticeship training under the
Apprentice Act 1961.
Under the SPDD project one of
the emphasis has been to train women working in the non-traditional sectors
especially in the construction industry.
Women want training and it is
necessary to develop training modules in multimedia packages to overcome the
hurdle of illiteracy among the women workers, and slowly develop methods of
making them literate with training material in their own field of experience.
While training the women, it should also be kept in mind that they should be
able to apply it in their work. There has to be coordination at the macro
policy level to ensure that technological development take into consideration
the existing skill level among the women workers and open up channels in the
direction of their experience and sharpen those.
Therefore the introduction of improved
technology to eradicate the drudgery and the hazardous condition of work for
women in the construction sector or in any sector for that matter should be
carefully planned to ensure that such concern should not result in reduction in
employment opportunities for women. The choice of technology cannot be made
purely in terms of productive efficiency but will have to be an optimum mix of
efficiency and employment.
Workmen’s Compensation Act 1923
While this particular Act is
gender neutral Section 2(1)(n) of the act defines the term ‘workmen’ excluding
from its ambit a person whose employment is of a casual nature.
Given the nature of women’s
employment in the unorganized sector, it is not difficult for the employer to
argue that their employment is of a casual nature. Schedule II to the Act lists
out persons who subject to Sec2 (1)(n) are included in the definition of the
term workmen.
In this list there are three entries as for
examples (xviii) (iii) and (xxvi), in which the applicability depends on the
number of persons employed; entry (xvii) in fact is not even dependent on the
number of workmen employed but in the number of persons a ferry boat is capable
of carrying. These restrictions on numbers have no place in social security
legislation like the Workmen Compensation Act. These should be removed.
One of the recommendations that
have been made repeatedly by workers organizations is that all employees be
compelled by law to take out accident insurance policies or that the payment of
Workmen’s Compensation be out of a Central Fund to which al employers pay
monthly contribution calculated at a certain percentage of the wages. It has
been a longstanding demand that the Act must also be amended suitably to place
the burden of proof squarely on the employer to establish that the accident did
not arise out of and in the course of the employment, instead of the workmen
having to prove otherwise.
Likewise, where the question
relates to the nature of injury and extent of disablement, the expert’s
certificate must be admitted in evidence, leaving it to the employer, if he
chooses, to summon the medical expert at his cost for purpose of cross-
examination. One of the root problems in the unorganized sector of pinpointing
the responsibility of the employer is the lacuna in legally establishing the
concept of principal employer. Of the 75 women interviewed, 100 per cent work
under a contractor and those who are picked up from the labour chowks, work for
different contractors every few days or every other day and there is no way
that they can even be identified as workers leave alone identifying who their
employers are.
[i]
Interpretation of article 23 of the constitution of India in writ petition no. 8143 of 1981 P.N Bhagwati and Baharul Islam J.J AIR 1982 Supreme Court 1473
[ii] According to the 21 directives of the apex court in writ petition no. 2135 of 1982 P.N Bhagwati, R.S Pathak and Amarendranath Sen J.J Bandhuwa Mukti Morcha Vs. Union of India and others.
[iii]
Data till 2010 - 2012
[iv] "When
I came here people asked me whether I have come from Meerut. I felt relief
after many weeks as people in the convention know the suffering of each other.
The riots had given me immense pain by people from the Hindu community. I feel
relieved when I see people such as Dr Lenin and organisations such as PVCHR who
stand by the victims and share their plight. Having came here I feel I should
also stand with other the victims and fight for their cause. If other victims
need me I shall always be ready to work for them"
[v] Meta legal intervention is other than legal intervention in court of
judicial Magistrate and Administrative Magistrate such as intervention in Human
Rights Institutions eg. National Human Rights Commission (NHRC) etc, with
administration, Governments at province and central level, UN etc.
[vi]
http://www.ohchr.org/EN/Issues/Torture/SRTorture/Pages/Appeals.aspx
[vii] http://www.mynews.in/fullstory.aspx?storyid=16844, http://pvchr.blogspot.com/2010/02/india-please-immediate-support-to-mr.html
[viii] Aurora Levins Morales, 1998
Medicine Stories. Boston: South End Press.
[ix] Training of leaders, door to door campaign
[xi]
http://modelvillageprocess.blogspot.in/2012/08/folk-peoples-initiative-against-torture.html
[xii]
http://www.testimonialtherapy.org/2012/03/women-folk-school-on-neo-dalit.html
