international standard on forced...

VOLUME II ISSUE 2 JANUARY 2018

79

INTERNATIONAL STANDARD ON FORCED LABOUR

PRACTICES – A PERSPECTIVE ON THE SOUTH INDIAN

TEXTILE INDUSTRY

NANDANA T. & SAURABH KUMAR 1

ABSTRACT The problem of forced labour in India is multi- faceted. The paper tries to

make a comparative study between the international framework on forced

labour and the Indian scenario. The paper endeavours to argue that the

implementation of legislations that try to eradicate forced labour practices,

are inefficient. Such inefficiency has led to the prevalence of forced labour

in the textile industries, especially the South Indian textile industries. The

paper analyses the worker’s conditions, and tries to find out the probable

causes of the existence of such conditions. Further, it tries to provide for

some changes that may adopted to contain and reduce forced labour

practices.

I. INTRODUCTION The initiative to abolish forced labour, although exists in various legislation

in India, yet it remains poorly implemented. This paper analyses the present

condition of workers in the textile industry, especially in southern part of

India. The textile industry in South India mostly in Tamil Nadu is one of the

oldest and well established sectors. It is a major contributor the economy of

1 Students, West Bengal National University of Juridical Sciences, Kolkata, India.

INDIAN JOURNAL OF LAW & INTERNATIONAL AFFAIRS

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the country. However, the labour practices in this sector make a blatant

display of forced labour. The paper discusses the Sumangali scheme and the

ramifications of the scheme on the labour force in the textile industry. It

analyses whether the norms related to forced labour in India conforms to the

international frame work provided by the two conventions that the country

has ratified. The paper is divided into seven parts. Part I provides the

existing international framework for abolition of forced labour in India. It

discusses the two Conventions that India has ratified and the obligations that

have been placed on the states in conformity with the regulatory mechanism

provided by ILO. Part II analyses the definition of forced labour in the

international frame work and tries to determine its scope. Further in part III

the paper discusses the applicable standard for the abolition of forced labour

in India. Part IV analyses the plight of workers in the textile industries in

South India and Part V discusses the legal provisions that may be applicable

for the workers in textile industries. It discusses the various standards that

may be applicable for the abolition of forced labour. Part VI tries to analyze

the different causes of forced labour in the industry and finally VII discusses

possible recommendations that may be applicable.

II. THE INTERNATIONAL FRAMEWORK FOR THE ABOLITION OF

FORCED LABOUR

The International Labour Organization was established in 1919 to evolve

and implement an international framework on Labour standards. The

Organization comprises of representatives of the government, the workers

and the employers. They meet once every year to adopt new and relevant

labour standards. They provide for conventions which once signed and

ratified becomes binding on all member states. Further, they also provide


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for working guidelines to help implement the conventions, which are not

binding on states. The first convention on abolition of forced labour was

formed as a result of the uproar against the practices of “forced and

compulsory labour” against the native population. The Organization

appointed an expert’s committee in 1926 to address the issue.

Consequently, the Organization adopted the Forced Labour Convention of

1930.2 This was the beginning of international jurisprudence on forced

labour. The Convention required state parties to criminalise all forms of

forced labour provided under the Convention. Subsequently in 1957, ILO

adopted the Abolition of Forced Labour Convention (No.105) 3 after

increasing concerns of usage of forced labour as a political tool.

Authoritarian regimes such as the Soviet Union, especially under the Stalin

rule sent political prisoners to Siberia where they worked for long hours in

extremely bad working conditions. Such increasing forced labour practice

eventually lead to the adoption of the convention in 1957. Further in 1999

the organization also adopted the Worst Forms of Child Labour Convention

(No. 182)4, which also did not alter the definition of forced labour used in

the 1957 convention. Hence the three Convention become the basic

international frame work to combat forced labour. The enforcement

mechanism of ILO is dependent primarily on the supervisory and technical

assistance. There is an obligation on the member states to send annual

reports on the conventions that have been ratified in their nations and also to

send reports on promotion of principles that constitutes the core labour

standards. 5 Further, other non-state organizations of workmen and

employers may also comment on the submissions made by the state. In

2 Convention Concerning forced or Compulsory Labour, June 28, 1930, 39 U.N.T.S 55. 3 Convention Concerning Abolition of Forced Labour, January 17, 1959, 320 U.N.T.S. 291. 4 Worst Forms of Child Labour Convention June 17, 1999, 2133 U.N.T.S.161. 5 Philippe Egger, The ILO's Special Action Programme to Combat Forced Labour, 142 INT. LABOUR REV., 1 (2003).


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addition, the Constitution, also authorises any worker or employer

organizations to make representations if non-compliance of the provisions

of the conventions may be found.

III. DEFINITION OF FORCED LABOUR

The term forced labour is defined as “all work or service which is exacted

from any person under the menace of any penalty and for which the said

person has not offered himself voluntarily”6. The definition of forced labour

consists of three aspects. One, it must be a work or a service, second, it must

be performed under a “menace of any penalty” and third, the element of

consent must be absent. Such definition of forced labour leads to variation

of interpretation in different jurisdiction. This is mainly due to different

standards of interpretation of the terms “voluntary” and “any penalty”.

There is confusion regarding the extent of inclusion of worker’s perspective.

In ICTY Trial Chamber in Prosecutor v. Krnojelac7 the trial chamber lays

down that there needs to be an objective standard of involuntariness. It

observed that without any evidence that showed signs of forced labour, the

trial chamber could not rule in favour of the worker mere based on his

testimony that he felt coerced. However, it recognised the existence of

psychological coercion. Further, the scope of the term voluntary remain

unclear. The Kunarac judgement8 held that the consent of the victim is

“rendered irrelevant by use of fear of violence, deception, abuse of power,

position of vulnerability psychological oppression or socio-economic

conditions”. It also lays down the factors that need to be considered while

6 Supra note 1. 7 Prosector v. Krnojelac, IT-97-25-T. 8 Prosecutor v. Kunarac & Vukovic , IT-96-23-T& IT-96-23/1-T.


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determining whether the employment was voluntary. It includes “control of

someone’s movement, control of physical environment, psychological

control, measures taken to prevent or deter escape, force, threat of force or

coercion, duration, assertion of exclusivity, subjection to cruel treatment and

abuse, control of sexuality and forced labour”.9 This widens the scope of

“works and services” that may be included under forced labour. The second

phrase that creates uncertainty regarding its interpretation is “menace of any

penalty”. Menace of any penalty in traditionally meant as physical threat or

violence, however, in present times, with mounting economic pressure and

competition, workers have no choice regarding the conditions of their job.10

Therefore, even if no wilful act is made, the worker is indirectly coerced.

Questions whether such economic constraints may be included under the

scope of “menace of any penalty” has achieved mixed reactions. Some of

the courts in the U.S lay down that the scope must include those acts that are

meant as “purposeful actions” from the employer. 11 Similarly, the

committee of experts have proposed that the phrase must be construed

broadly. Further, the acknowledgement that both psychological coercion

and economic compulsion may be included into the scope of “menace of

penalty,” has been effected by the ILO supervisory bodies as well as the

committee on experts. However, they add the caveat that a general condition

of economic constraint would not amount to penalty. They take a balanced

approach between the interests of the employers and the workers. In

contrast, the Supreme Court of India along with other jurisdictions is more

supportive of the economic coercion idea. Similarly, the French court in the 9 Id. 10 Matthias Busse & Sebastian Braun, Trade and Investment Effects of Forced Labour: An Empirical Assessment, 142 INT. LABOUR REV.1. (2003) (It argues that foreign investments and high competition in the availability of labour is directly linked to the decrease in working condition and sometimes even forced labour). 11 Forced Labour And Human Trafficking Case Book Of Court Decisions, 2009, INTERNATIONAL LABOUR ORGANISATION,(September 30, 2016). http://oppenheimer.mcgill.ca/IMG/pdf/ILO.pdf.


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case Procureur de la République v. Monsieur B12., has identified that risk of

unemployment would be a relevant penalty imposed as it makes the worker

dependent on the employer.

Further, considerations of vulnerability of the worker in terms of the

worker’s status such as youth migrant, gender, physical or mental

capability, social obligations etc., are also taken into account while deciding

whether the worker is coerced. In Siliadin v. France13 the case about a

female Togolese national who was a domestic unpaid servant. The girl was

free to walk in and out of the house. However, the owners had promised the

girl that she would attend school while living in Paris and, but failed to

realize their promise, instead, the girl had to work for long hours without

any pay. The European Court of Human rights, observed that the European

convention on abolition of slavery and forced labour, under Article 414

imposes additional obligations on countries apart from the international

conventions, to ensure such practices are prohibited. It highlighted the status

of the Togolese girl in the society, an immigrant minor, and held that

vulnerabilities of a person must also be accounted while determining

whether or not, it was forced labour. The committee of experts appointed by

the international labour organization, have elucidated that the countries

impose on their citizens certain obligations which may not be included in

“work” or “service” as defined under the conventions.15 To illustrate, some

countries impose compulsory education which would not constitute as work.

However, when compulsory vocational training programs are imposed, it

would practically encompass some characteristics of the “work/service”.

12 Procureur de la République v. Monsieur B, Cour d'appel de Chambry, du 31 décembre 2002, 02/00579. 13 Siliadin v. France (2006) 43 EHRR 16. 14 European Convention on Human Rights 1950, Art 4. 15 Abolition of Forced Labour, General Survey by the Committee of Experts on the Application of Conventions and Recommendations, ILC, 65th Session, Geneva, 1979.


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Therefore such situations must be evaluated carefully to check for forced

labour.

IV. THE STANDARD FOR FORCED LABOUR UNDER THE

INTERNATIONAL FRAME WORK

Forced labour as discussed above has a broad scope and hence, all forms of

coercion is included. Some of the indicators of such forced labour include

poor working conditions, harassment of workers, high risk of loss of

employment, presence of a social obligation placed on a person to

compulsorily work for the employer, presence of fear in the working place,

long working hour and wages below the fixed minimum limit. The

conventions while defining forced labour also provide for certain

exceptions. Article 2 of the 1930 Convention on Abolition of Labour,

provides that forced labour would not be considered so, if the work or

service exacted in form of compulsory military services, normal civic

obligations, as a consequence of conviction in the court of law, in cases of

emergency and minor communal services performed in the interest of the

community which would be considered as normal civic duty.16 Further, the

1957 Convention provides for explicit exclusion of certain forms of forced

labour. Article 1 of the Convention provides that, forced labour may not be

used as a means of political coercion, or education or as a punishment for

holding or expressing political views or views ideologically opposed to the

established political, social or economic system.17 States are also prohibited

to use force labour for the development of the economy, as a means of

16 Supra note 1, art 2. 17 Supra note 2, art 1.


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labour discipline, as punishment for strikes or as a means of racial, social or

religious discrimination.

V. FORCED LABOUR IN INDIA THE TEXTILE INDUSTRIES

Sumangali practice in Tamil Nadu employs girls aged between 15-18 years

in the spinning mills. A significant portion of the wage is withheld till these

girls complete their tenure which lasts for about 3-5 years. This scheme

usually employs young girls of marriageable age and is also called a

marriage assistance system as the lump sum provided at the end of the

tenure is mostly used for the purpose of marriage or dowry.18 Some of the

practices that characterise the Sumangali scheme is that workers are paid

stipends instead of wages, social security benefits are not provided, and

neither are measures taken to provide for health and hygiene of the

workers.19 Further, women workers are paid less compared to their male

counterparts. Most of the workers who are promised a certain lump sum

amount do not get the amount due to various reasons and the workers who

get such sum, get money way below what was promised.20

A. Deceptive Practices

Workers in the textile industry are often recruited with false promises and

hopes of employment with good wages and working conditions. Sometimes, 18 Fair Labor Association, Understanding the Characteristics of the Sumangali Scheme in Tamil Nadu Textile & Garment Industry and Supply Chain Linkages, May, 2012, (September 30, 2016), http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=2749&context=globaldocs . 19 Id. 20 Addressing Modern Slavery in Tamil Nadu Textile Industry –Feasibility Study Report, December, 2014, (September 30, 2016), http://freedomfund.org/wp-content/uploads/Addressing-modern-slavery-in-Tamil-Nadu-Textile-Industry-26Feb15.pdf.


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they are also asked to give their identification documents such as voter ID to

the employer.21 Moreover, the social oppression of certain groups in the

society, restricts their scope of finding a suitable employment. To illustrate,

forced labour in South Indian textile industry is corrupted with forced

labour practices. The Sumangali scheme is one of the famous examples.

Under this scheme, girls of 14-16 years of age are targeted from the

vulnerable and poor sections of the society such as SCs and STs. Since the

parents of such girls cannot afford their studies, to support their livelihood

these girls become an easy target. There exists an entire illicit market for the

requirement of such workers. The recruits are usually given a recruitment

fee between INR 500-1000.

B. Working Conditions and Wages

Even though there are several regulations regarding the working conditions,

they are not implemented in most places. The work hours are excessively

high, and many work in unhygienic conditions. For example, many young

women and girls are confined in the factory premises. The workers are often

made to overtime in order to achieve the targets and they are often not paid

for this overtime work.22 Such factories tie up with some of the private

hospitals so that when any worker falls sick, no formal procedure should be

followed in the treatment so that the worker is left with no medical proof in

order to seek compensatory benefits. The young women are kept in hostels

where there is overloading of people in one single room due to paucity of

space. They are not provided with adequate sanitary facilities and are often

21 See Kevin Bales , International Labor Standards: Quality of Information and Measures of Progress in Combating Forced Labor, 24 COMP. LAB. L. & POL’Y J 321 (2003). 22 Supra note 15.


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threatened of physical and sexual violence. The workers under the

Sumangali scheme frequently complain of verbal and physical abuses by

their employers. Further there is no freedom of movement in many

industries especially those that employs women. The spinning mills which

offer accommodation to women, make them virtual prisoners. They are only

allowed to go out during holidays and many are at the discretion of the

management even when they are severely sick. In most cases they are cut

off from communicating with their families. All these measures are

implemented in the garb of safety measures. Most importantly, the schemes

which provide for a lump sum payment at the end of 3-4 year contract to

work, are often riddled with loopholes.23 They have strict clauses that deny

the workers their provident funds or the consideration promised if the

workers do complete their contractual obligations of 3-4 years. In light of

such clauses, the employer ensures that they do not comply with their

obligation, hence leading to large scale exploitation of labour. The

employers use many techniques to deny wages to the worker, like late

payment, early termination of contracts, and many more. The daily wages

provided are below the minimum wage limit. The workers in the Tamil

Nadu textile industries are paid between INR 100 to 230 on an average

which is below the minimum wage limit of INR 282 as fixed by the state

government.

C. Menace of Penalty

Most of the times the workers are work under the threat of non-payment of

wages. Further, due to lack of awareness, employees work without any

contractual obligation. Further, due to increasing competition for

employment, the workers work with the risk of losing their jobs. Many a

23 Supra note 19.


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times, the workers fear the employers in the textile industry. The workers

who speak out against their employers are not tolerated, their working

conditions are made worse if they speak out. A worker under the Sumangali

scheme working in a textile establishment was found to have mysteriously

committed suicide just the day after she complained against the mill owners.

Even the investigation reported doubts of her death.24 Many such deaths

have been reported across various mills but no action has been taken to

investigate further into their cause or against the mill owners. Verbal

abuses, sexual violence, caste based insults are common in such

establishments. Consequently the workers live in constant fear which

amounts to psychological fear.

VI. AVAILABLE RULES AND REGULATIONS THAT MAY APPLY

TO THE TEXTILE INDUSTRY

A. Bonded Labour Abolition Act, 1976

The Bonded Labour System (Abolition) Act, 1976, it includes an act or

service done as part of repaying any “bonded-debt”.25 Sections 1026 to 1227

obligates every district magistrate and every officer who is delegated with

that power, to inquire regarding the existence of bonded labour or any form

of forced labour after the commencement of the Act. Further the Act under

24 Trade union comment on the application of India on the Forced labour convention (No. 30), October 8, 2015, (September 30, 2016), http://www.indianet.nl/pdf/br151008.pdf,. 25 Bonded Labour System (Abolition) Act, 1976, §2 (e). 26 Id., §10. 27 Id., §12.


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section 1528 mandates the establishment of vigilance committee in each

district and sub divisional district. The functions of such committees are

enlisted under section 14 29 of the act. The vigilance committee is

responsible for ensuring that the provisions of the Act are implemented.

They also advise the district magistrate regarding the measures that need to

be taken for the efficient implementation of the Act.

B.The Constitution of India

The Indian Constitution provides for specific Articles to deal with the

menace of forced labour. Under Article 23,30 trafficking of individuals,

begar labour and other forms of coerced labour are prohibited. However, the

state is allowed to call for compulsory services for public good, provided it

does not discriminate amongst people on the grounds of religion, race, caste,

ethnicity etc. It is a fundamental right and can be legally enforced. Article

42 31seeks to ensure that just and humane conditions of work prevail and

also provide for maternity relief. The state has to ensure that these norms are

respected and followed. Since, it is part of the Directive Principles of State

Policy (DPSP), legal enforcement is not necessarily guaranteed unless

specific statutory provisions provided. Similarly, Article 43,32 also part of

the DPSP, asks states to ensure that living and economic conditions of all

workers in varied fields.

28 Id., §15. 29 Id., §14. 30 The Constitution of India 1950, art. 23. 31 The Constitution of India 1950, art. 42. 32 The Constitution of India 1950, art. 43.


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C. The Factories Act, 1948

The definition of a worker under the Factories Act, 194833 includes workers

employed directly or indirectly by an establishment involved in the

manufacturing process. Further the definition of manufacturing process is

broad enough to encompass the textile industry. Factories Act has detailed

provisions to protect the rights of workmen. Section 934 gives inspectors the

powers to investigate and deal with health hazards that may be existing in a

factory. Sections 1235 and 1336 deal with cleanliness standards that should

be maintained in a factory. It lays down several basic standards that is the

establishments have to comply with. Further, Sections 1837 and 1938 make

provision for the availability of clean drinking water for the employees.

Similarly section 4539 aims to provide workmen with basic medical facilities

such as the availability of the first aid kit. Further, section 40 B40 provides

for appointment of safety officers if the government notifies in factories

employing above a thousand workmen or if the factory involves hazardous

work. The act also provides for healthy working conditions. Under section

4641, all factories employing above 250 workmen, are obligated to establish

a canteen and all factories employing more than 150 workmen, must

provide for adequate lunch rooms and restrooms for the workmen. The Act

also provides for bonus and overtime wage allowances in excess of the

general wage allowance under section 5942. It states that if a worker works

33 The Factories Act, 1948. 34 Id., §9. 35 Id., §12. 36 Id., § 13. 37 Id., §18. 38 Id., §19. 39 Id., §45. 40 Id., §40 B. 41 Id., §46. 42 Id., §59.


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more than 9 hours a day and 48 hours a week then, the worker would be

entitled to double the ordinary wages payable. Most importantly, it

regulates, the employment of children employed above 14 years of age

under chapter VII43. First it prohibits the employment of children below 14

years under section 67.44 The Act provides certain extra requirements while

employing children under the Act. It provides for a certificate of fitness to

be provided by a certifying surgeon at intervals of 12 months. Further, it

also restricts female adolescents who have not reached the age of 17 years

from working beyond 7 P.M or before 6 AM. However, the government

may vary the time limits or remove it provided that the adolescent has the

certificate of fitness. In addition section 71 45 lays down more rules

regarding the employment terms of such children. It prohibits children from

being employed for more than four and half hours a day and night which

includes at least 12 consecutive hours. Further it restricts the working hours

of a female child to 8 A.M to 7 P.M. It also provides for stricter norms of

registration of child workers under section 7346 and in section 7947 workers

working for 240 days or more in a factory during a calendar year would be

allowed a paid leave of about one day for 20 days of work, for adults and

one day for every 15 days of work for children.

D. Inter State Migratory Workmen Act, 1979

43 Id., Chapter VII. 44 Id., §67. 45 Id., §71. 46 Id., §73. 47 Id., §79.


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Inter State Migratory Workmen Act,48 provides for various measures to

protect workmen. Section 10 (1) (b)49 allows labour inspectors to keep a

strict vigil on the contractors employing migratory workmen, with powers

revoke the license in case deceit, fraud or any other unfair means were used

to obtain the license. Section 1550 asks for the employer to provide the

workmen with journey allowance when travelling from place of work to his

place of residence, it will cover both the inward and the outward journeys.

Under Section 16 (a)-(g)51, any contractor who wants to employ migratory

workmen has to provide them with facilities like medical facilities,

protective clothing, drinking water, latrines, urinals, and washing facilities,

rest rooms, canteens, residential accommodation among others. There can

be no outstanding debts between an employer and an inter-state workman

once the period of employment is over according to section 1952; thus

ensuring no chances of debt induced servitude. Section 2553 deals with

punitive aspects of the aforementioned Act. It states that no compliance with

this Act would lead to imprisonment for one year or fine of one thousand

rupees or both. Section 27 (2)54 holds directors of companies responsible for

not adhering to provisions of this Act and this can lead to legal action

against them, if it is found that acts in contravention of this statute were

committed by their consent, connivance or neglect. Section 35 (2) (e)55 of

the Act also allows state governments to frame rules with regards to

granting of licenses to such contractors engaging migratory workmen.

48 The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service Act), 1979. 49 Id., §10(1)(b). 50 Id., §15. 51 Id., §16. 52 Id., §19. 53 Id., §25. 54 Id., §27(2). 55 Id., §35(2).


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E. The Contract Labour (Regulation And Abolition) Act, 1970

Under the Contract Labour (Regulation and Abolition) Act 1970, all

establishments with 20 or more employed for the past one year or more and

their respective contractors, have to abide by it. Section 2 (1) (b)56, defines

contractual labour as those individual/s employed via contractors who are

tasked with production activities and tasks and not merely supply of goods

and articles for manufacturing, including those employed via sub-

contractors. Sections 1657 to 1958 mandatorily asks the contractors to create

facilities pertaining to canteens, rest rooms, first aid facilities and other

facilities. Section 2059 of the Act, puts the onus on the principal employers,

in case the contractors are unable to provide the employees with the

aforementioned facilities.

VII. CAUSES OF FORCED LABOUR IN THE SOUTH INDIAN

TEXTILE INDUSTRY

A. Government has a Vested Interest

The textile industry in India is one of the oldest industries. It is also one of

the major contributors to the total exports, it makes up to 11% of the total

exports.60 Further is highly labour intensive and employs around 40 million

workers directly and 60 million. The industry is worth 108 U.S $ and is

expected to be 223 US $ by 2021. It earned 40 billion U.S $ in exports

alone. It contributes about 14 % to the overall Index of Industrial production

56 Contract Labour (Regulation And Abolition) Act, 1970. 57Id., § 16. 58 Id., §19. 59 Id., §20. 60 IBEF India Brand Equity Foundation, Textile Industry in India, July 2015, (30 September 2016), http://www.ibef.org/industry/textiles.aspx.


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and about 5% to the GDP.61 It also a displays a sudden growth in the foreign

direct investment. Further the Indian government has also initiated schemes

to promote the export sector of the textile industries. For example, the

handloom initiative is one such reform. The textile industry is predicted to

create millions of jobs across the country.62 Therefore, the government has

an incentive to promote this industry. Consequently the protection provided

by the labour laws are not implemented in the same fervour in the textile

industry as compared to other industries.

B. Social Oppression

Most of the workers under the textile industries are from vulnerable classes

of the society. 63 Further mostly women are recruited. Due to social

constraints, these repressed classes do not get any opportunity apart from

such fraudulent schemes, they have to inevitably join textile work even if

they do not want to. It is also documented that several generations of a

family would have worked for the same textile owner. It becomes very

similar to bonded labour.64 Further they also find gender discrimination in

many forums. Most of the complaints regarding hygiene issues, working

conditions are not taken seriously by the inspectors or safety officer and in

most cases they are not taken seriously.

61 Id. 62 Id. 63 Supra note 23. 64 Patrick Bolle, Supervising labour standards and human rights: The case of forced labour in Myanmar (Burma), 137 INT. LABOUR REV. 3, (1998).


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C. Misuse of the Apprentices Act, 1961

The Apprentices Act under sections 2aa65 and 2(aaa)66 define an apprentice

to be anyone who is undergoing a training in an industry. The age limit

under section 367 of the Act is 14 and the provision of this Act is misused by

the textile industry. The industry does not recognise the workers as

apprentice. The employers maintain their status as trainees for the whole

period of contract of 3-5 years. This deprives them of the benefits of the

different schemes available for the regular workers. The Department of the

Employment and Training of the Tamil Nadu government states that the

period of apprentice may vary from six months to four years according to

the requirement of the trade. There is no safeguard to protect exploitation in

such a manner.

D. Lack of Trade Unions

Although the trade unions exist, in the textile industry, most of the workers

affected are not part of a labour union. Further, the workers are also

discouraged to join the labour unions. Most of the affected workers found in

the textile industry are adolescent women.68 They are not given membership

in trade unions and the trade unions themselves do not have access to the

premises of work or their accommodation. The workers are virtually cut off

from the world. Therefore they have no representatives to promote their

cause.

65 Apprentices Act, 1961, §2aa. 66 Id., §2(aaa). 67 Id., §3. 68 Supra note 62.


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E. Lack of Awareness

Most of the workers employed are poorly educated and they lack reading

and writing skills. This also leaves them unaware of their rights and the

different forums that are available to claim them.69 Most of the workers in

Sumangali scheme are still working without any contract signed between

them. About 90% of the women who receive their lump sum about after the

3-5 year contract, do not receive the promised amount. They do not

complain, because of the lack of awareness of the prevailing law.

F. Failure of Identification

The definition of forced labour as conceptualised under the international

conventions, have not been adopted in India. The only definition available is

the definition under the Bonded Labour Act. The definition provided under

the Bonded Labour Act is confined to a narrower scope compared to the one

in the Convention.70 Therefore it is difficult to identify the conditions of

forced labour. In most cases, forced labour exists in the form of

psychological coercion. Here, there lies an inherent confusion of the

evidential standard that may be used to evaluate the situation. Further, most

of the workers are not aware of the applicable labour standards. The workers

consider it normal for them to work under such conditions. Further, the

inspectors or safety officers provided in the legislations above, only have

access to the premises of the establishment and not the accommodation

69 Supra note 17. 70 Supra note 24.


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provided by the employers.71 The workers are reprimanded and kept in fear

in such accommodation.

G. Failure of Implementation

The government often politicises such issues. Reforms for implementation

have been introduced time and again, however the government has failed to

effect it. The Tamil Nadu government has announced various orders and

schemes to improve implementation for almost two decades, but they have

still remained as empty promises.72 The government also denies that the

Sumangali scheme is one of the root causes of forced labour.73 More over

the government has an incentive not to implement schemes against forced

labour in the textile industries, it would lose the investments and hence a

large chunk of the economy is affected by it. In addition there is a general

problem of implementation.74 Even though many labour law legislations

discussed above provide for improvement of working conditions, it is rarely

implemented. To illustrate, the Bonded Labour Act provides for setting up

of vigilance committees, while the states are reluctant to set it up. Further,

the government has provided for Rules75 to set up and implement the

provisions of rehabilitation and had asked the state governments to adopt

the same, however, these rules have not been adopted by most states.

71 Supra note 62. 72 The Hindu, Govt. denies exploitation of girls under Sumangali scheme, August 17, 2016, (September 30, 2016), http://www.thehindu.com/news/cities/chennai/govt-denies-exploitation-of-girls-under-sumangali-scheme/article8996516.ece. 73 Id. 74See International labour Organization, Observation (CEACR) - adopted 2015, published 105th ILC session (2016)- Forced Labour Convention, 1930 (No. 29) - India (Ratification: 1954), 2016, (September 30, 2016), http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3255918. 75 Central Sector Scheme for Rehabilitation of Bonded Labour, 2016, (September 30, 2016), https://labour.gov.in/sites/default/files/OM_CSS_Rehab_BL_2016_1.pdf.


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VIII. RECOMMENDATIONS

A. Measures under the 2014 Protocol on Forced Labour

The Protocol of 201476 to the Forced Labour Convention of 1930 suggests

the following measures to prevent and mitigate compulsory labour practices.

These measures include educating and informing particularly vulnerable

people about such practices and also creating awareness among employers

in order to prevent their involvement. Such efforts include the coverage and

enforcement of legislations relevant to prevention of forced labour and

strengthening labour inspection services and other services responsible for

the implementation of the legislation. Furthermore, migrant workers have to

be protected from abusive and fraudulent practices during recruitment.

Lastly, that both public and private sectors must be duly diligent in

preventing and responding to such risks of forced labour and must address

the root causes and factors that give rise to such risks. The protocol also

provides specific guidelines to the members. First, that each member shall

ensure all victims of forced or compulsory labour irrespective of their

presence or legal status in the national territory to have access to appropriate

and effective remedies. Second, that each member shall ensure that

authorities are entitled not to prosecute or impose penalties on victims of

forced or compulsory labour for their involvement in unlawful activities

which they have been compelled to commit as a direct consequence of being

subjected to forced or compulsory labour. Finally, the Protocol also calls for

76 Protocol 2014 to the Forced Labour Convention of 1930, (September 30, 2016), http://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/ILO_P_029.pdf.


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cooperation among member states to prevent and eliminate all forms of

forced or compulsory labour

B. Measures provided by the Bandhua Mukti Morcha Case

The Bandhua Mukti Morcha case77 also provides measures that needs to be

taken in case of bonded labour. In the case of bonded labour of the textile

workers such measures play an important role. It provided for both

psychological rehabilitation along with economic and physical

rehabilitation. Further it listed the major components that must be

guaranteed while physical and economic rehabilitation is provided. They are

“allotment of house-sites and agricultural land, land development, provision

of low cost dwelling units, agriculture, provision of credit, horticulture,

animal husbandry, training for acquiring new skills and developing existing

skills, promoting traditional arts and crafts, provision of wage employment

and enforcement of minimum wages, collection and processing of minor

forest produce, health medical care and sanitation supply of essential

commodities, education of children of bonded labourers and protection civil

rights;”. It also emphasised on integration of the central and state schemes

so that overlapping of resources and corruption that arises out of it may be

contained. Further it also mandated that the bonded labourers who were

freed must be given several choices regarding the different rehabilitation

schemes that may be applicable. Further such rehabilitation must enable

them to cross over the poverty line and prevent the occurrence of bonded

labour again. Similarly in the Bandhua Mukti Morcha case 199178 it was

directed by the court that a committee under the Director General, Labour

77 Bandhua Mukti Morcha v. Union Of India, 1984 AIR 802. 78 Bandhua Mukti Morcha v. Union Of India, 1992 AIR 38.


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Welfare or other Senior Officers should be constituted. The Committee was

tasked with the responsibility of conducting regular field visits and ensuring

that employers provided the labourers and their families with sufficient

amenities. It was also decided that since these workers operated in far flung

areas, on the spot medical services must be provided.

C. Empowerment of Girls and Young Women.

The workers employed under the textile sector, especially women, find

themselves with virtually no representation. With the socially oppressive

background and lack of awareness, they are bound to accept their situation.

Therefore schemes to address this very problem are necessary.79 The aim of

women empowerment schemes is to make the women employed in such

industries aware of their rights and encourage them to speak out against the

illegal practices of their employer and the conditions of their employment.

To illustrate, the Nalam project80 is undertaken in Tamil Nadu. They offer a

training program on health issues and the womens’ rights as workmen of an

establishment. They also encourage communication between the workmen

and managers or employers. The NGO project is highly successful. More,

such training programs must be organised.

D. Regulation of the Process of Recruitment

79 See Shelley Case Inglis, Expanding International and National Protections Against Trafficking For Forced Labor Using A Human Rights Framework, 7 BUFF HUM. RTS. L. REV.ff. 55 (2001). 80 Women Mill Workers In Tamil Nadu, ETHICAL TRADING INITIATIVES, (September 30, 2016), http://www.ethicaltrade.org/programmes/women-millworkers-in-tamil-nadu.


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About 60 million people are recruited by the recruitment agents and hence

recruitment of workers for the textile industry remains one of the booming

businesses in South India especially in Tamil Nadu. Workers are recruited

from different states like Orissa, Andhra Pradesh and Karnataka. Further

many of the recruitment process involve deceptive practices and fraud.

Some even involve in labour trafficking from different states. Therefore

there needs to be regulation of the recruitment processes.

E. Economic Compulsions

With increase in competition and increasing availability of labour, the

worker is compelled to work in below standard labour conditions. This

creates a necessity to place sanctions on such industries that violate basic

labour norms by those companies which are regarded as consumers of the

textile industries. Further sanctions may also be placed on the companies

that transact with such textile industries.

IX. CONCLUSION

The international framework for the abolition of forced labour provides for

an inclusive definition of forced labour. It includes all forms of

psychological coercion as well as physical forms of forced labour. The

textile industry in India is filled with forced labour practices and an

obligation is placed on the government to prevent such practices according

to the international conventions signed by the government. Further even

though the government has provided for various rules and legislations to

combat forced labour practices, they remain ineffectively implemented.

Some of the major causes of forced labour are, social oppression of the


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potential workers, misuse of the apprentices act, the lack of trade unions and

the lack of awareness. Further, the failure of identification and

implementation also add to the list of causes. This creates a necessity to

revamp the implementation of the legislation. Further more regulation of the

related processes like recruitment, is also necessary to effectively mitigate

the problem. Most importantly, education and awareness programs play a

prominent role in eradicating the problem internally.

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