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Petitioner: Muhammad Suleman VS Respondent: SHO etc
Court Name: Lahore High Court Judge(s): Tariq Saleem Sheikh Title: Muhammad Suleman vs SHO etc Case No.: Writ Petition No. 409 of 2020 Date of Judgment:2020-01-31 Reported As: PLD 2020 Lahore 534, 2020 LHC 200 Result: N/A
Judgment The Petitioner , Muhammad Suleman, filed an application under Section 491 Cr.P.C. praying that eight persons (named in the title thereof), who were alleged to have been detained by Respondents No.2 & 3 at their brick kiln (the "Detenues") be recovered and set at liberty . This Court admitted that application for regular hearing, issued notice to Respondents No.2 & 3 and directed Respondent No.1 (SHO, Police Station Noshehra Jadid) to recover them but he reported that they were not available at the given address. On 18.01.2020 Respondent No.1 registered FIR No. 31/2020 under Section 365 PPC and Sections 11 & 12 of the Punjab Bonded Labour System (Abolition) Act, 1992, against Respondents No.2 & 3 and others. 2. At one stage Respondent No.2 appeared through his counsel, Mr. Yousaf Ijaz Mohsin, Advocate, who submitted that there was no illegal detention. The Detenues, who were all adults, worked at the brick kiln of Respondent No.2 with their free will. On their request Respondent No.2 advanced them some money but one day they clandestinely left the place and went into hiding to avoid repayment. He contended that the application under Section 491 Cr.P.C. was malafide and collusive. 3. This Court directed the DPO, Bahawalpur , to trace the Detenues. He conducted raids at various places, including the brick kiln of Respondents No.2 & 3 but they were not found. The inves tigation of case FIR No.31/2020 is in progress. The Petitioner has also not been able to locate the Detenues or pinpoint the place of their detention/illegal confinement. In somewhat similar circumstances, in Shaukat Ali v. DPO and others (2005 YLR 1040 ), a learned Single Bench of this Court disposed of an application under Section 491 Cr.P.C. in the following terms: "To get recovery of detenues under section 491 read with section 561-A of the Cr.P.C., it is necessary that whereabouts of the detenues and the place shall be mentioned or pointed out by the petitioner . The petitioner himself has not been able to locate and disclose any such place from where the recovery could be made. The registration of F.I.R. with regard to the occurrence as noted above, has already been made, so as to trace the rest
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of the accused and recover the alleged detenues. So, this application has rightly been dismissed by the learned Sessions Judge. However , the petitioner can approach the local police with whom the investigation is in progress, if he is not satisfied with the pace and progress of the investigation, he can have redressal of the grievance from the superior of that force as provided by law . This application being misconceived is disposed of as such." 4. I was minded to follow Shaukat Ali's case, supra, and dispose of the matter but the learned counsel for the Petitioner submitted that this case involved wider question of enforcement of funda mental rights of a downtrodden section of the society and implementation of a number of laws, including, the Bonded Labour System (Abolition) Act, 1992 (the "Abolition Act"), the Punjab Prohibition of Child Labour at Brick Kilns Act, 2016 (the "Prohibition Act of 2016"), and the Punjab Restriction of Employment of Children Act, 2016 (the "Restriction on Employment Act"). He prayed that this application be treated as public interest litigation and converted into a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution). 5. Sir Jacob defines public interest litigation ("PIL") as follows: "It consists in the procedural machinery which may be employed to produce the relief or remedy or social effect which would be most advantageous or result in the greatest good of the members of the public as a whole or a significant or a selected section of the public, while at the same time producing a just result which is being sought by the litigant parties themselves." 6. However , in Russel v. Wheeler , [439 P.2d 43 (Colo. 1968)], the Supreme Court of Colorado judicially defined PIL as: "Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity , or as the interests of the particular localities, which may be af fected by the matters in question." 7. On the other hand, the Supreme Court of India defined the concept of PIL in S.P. Gupta v. President of India and others (AIR 1982 SC 149) as under: "Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illega l burden is threatened and such person or determinate class of persons is by reason of poverty , helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application for an appropriat e direction, order or writ in the High Court under Art.226 and in case of breach of any fundamental right of such person or determinate class of persons, in the Supreme Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons." 8. PIL has it's origin in the American and British system of laws. In the United States, it commenced during the late 1960s with the emergence of certain law firms which provided legal representat ion to unrepresented or under- represented groups or interests, particularly in matters such as environment, consumerism, civil liberties and minority rights etc. In the United Kingdom, the Attorney-General being responsible for due observance of law is obligated to ensure compliance with the rule of law. Hence, he is required to initiate proceedings where there is breach of law or act of negligence or failure of a public duty. Besides, relator action may be employed to protect public interest, for example to prevent public nuisance, protect the environmen t, ensure public health, check executive action which is against welfare of the people. This kind of suit is generally brought about jointly by the Attorney-General and an individual having sufficient interest in the matter . Howeve r, there are some exceptions to this rule. 9. The Supreme Court of India started it's populist approach when it decided L. C. Golak Nath and others v. State of Punjab and another (AIR 1967 SC 1643) and His Holiness Kesavananda Bharati Sripadgalvaru and others v. State of Kerala and another [(1973) 4 SCC 225]. However , in the case of S.P. Gupta v. President of India and others (AIR 1982 SC 149), supra , in which some lawyers challenged government policy regarding transfer of judges of the high courts laid the foundation of PIL in India. A seven-member Bench unanimously ruled that any member of the public, acting bonafide and not for oblique considerations, can maintain an action seeking judicial action for the judicial wrong or injury caused to such person or determinate class of persons. The case of1
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Bihar Legal Support Society , through its President, v. Chief Justice of India and another [(1986) 4 SCC 767] gave impetus to PIL when the Supreme Court declared that judiciary was willing to help the disadvantaged sections of the society and protect their rights. Bhagwati C.J. wrote: "...the weaker sections of Indian humanity have been deprived of justice for long, long years: they have had no access to justice on account of their pove rty, ignorance and illiteracy . They are not aware of the rights and benefits conferred upon them by the Constitution and the law. On account of their socially and economically disadvantaged position they lack the capacity to assert their rights and they do not have the material resources to enforce their social and economic entitlements and combat exploitation and injustice. Majority of the people of our country are subjected to this denial of access to justice and, overtaken by despair and helple ssness, they continue to remain victims of an exploitative society where economic power is concentrated in the hands of a few and it is used for perpetuation of domination over large masses of human beings. This Court has always, therefore, regarded it as its duty to come to the rescue of these deprived and vulnerable sections of Indian humanity in order to help them realize their economic and social entitlements and to bring to an end their oppression and exploitation. The strategy of public interest litigation has been evolved by this Court with a view to bringing justice within the easy reach of the poor and the disadvantaged sections of the community . This Court has always shown great concern and anxiety for the welfare of the large masses of people in the country who are living a life of want and destitution, misery and suffering and has become a symbol of the hopes and aspirations of millions of people in the country". 10. In the following years the Supreme Court of India decided many cases to help the underprivileged segments of the society get their social and economic rights. Notable among them are: M.C. Mehta and another v. Union of India and others (AIR 1987 SC 1086), Kishen Pattnayak and another v. State of Orissa (AIR 1989 SC 677), Bangalore Medical Trust v. B. S. Mudappa and others (AIR 1991 SC 1902) and Supreme Court Legal Aid Committee through its Hony . Secretary v . State of Bihar and others [(1991) 3 SCC 482]. 11. In Malaysia, Muhammad Bin Ismail v. Tan Sri Haji Othman Saat (1982-2 MLJ 133) is the leading case on PIL. The appellant and 183 others had applied for a State land and received no response. After eight years they found that the land had been allotted to the respondent, Menteri Besar of Johor . A question arose whether the appellant had the locus standi in bringing the matter to the Court. W an Yahya J. held: "If they (public authorities) transgress any law or constitutional directive, then any public-spirited citizen, even if he has no greater interest than a person having regard for the due observation of the law, may move the courts and the courts may grant him the appropriate legal remedy in its discretion." 12. The PIL movement took it's flight in Pakistan with the case Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416) when a Larger Bench of the Hon'ble Supreme Court unanimously held that the rule of "locus standi" and "aggrieved person" can be relaxed whenever a question of public importance arises with reference to enforcement of fundamental rights. The apex Court went further and added that fundamental rights include not only the rights enumerated in Chapter 1 of Part II of the Constitution but also those envisaged by Article 2A and the Principles of Policy in Chapter II of Part II. It said: "While construing Article 184(3), the interp retative approach should not be ceremo nious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely , the Objectives Resolution (Article 2A), the Fundamental Rights and the Directive Principles of State policy so as to achieve democracy , tolerance, equality and social justice according to Islam." 13. Commenting on the above-mentioned holding of the august Supreme Cour t of Pakistan Dr. Faqir Hussain wrote: "This triad of provisions together with the preamble of the Constitution and Article 4 occupy a place of pride in the scheme of our Constitution, as this combination extends the concept and scope of human rights beyond its traditional compass. The emerging catalogue of human rights is so comprehens ive that it includes all essential human rights, crucial for a civilised existence in the society . The preamble and Article 2A especially lay emphasis on the rights guaranteed by Islam. Indeed the right to have an access to justice is an important right guaranteed by2
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the Islamic law. Article 4 gives every citize n the right to enjoy the protection of law and to be treated in accordance with law. This Article is stated to be the equivalent of the principle of the rule of law. The Chapters on Fundamental Rights and Principles of Policy ensure a vast array of fundamental rights including social, economic and political rights. The rights given in Chapter on Principles of Policy though not justiciable per se are actually an altruistic extension of fundamental rights and impose an obligation on the State to make necessary legislation for giving effect to such rights." 14. However , in subsequent cases it was clarified that PIL must be grounded in bonafide public interest. The courts should not allow the corridors of justice to be polluted by vested interests or unscrupulous persons. 15. In India, the constitutionality of PIL is founded on Articles 32 and 226 of the Indian Constitution while in Pakistan the relevant provisions are Articles 184(3) and 199 of the Constitution of Islamic Republic of Pakistan. These Articles give wide powers to the superior courts to enforce fundamental rights, ensure compliance with the rule of law and provide access to justice to all citizens. After Benazir Bhutto' s case, supra, the superior courts in Pakistan have entertained numerous PIL cases. In this respect reference may be usefully made to Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883 ), Salahuddin Dharaj v. Province of Sindh through Secretary , Local Government Departm ent and 4 others (PLD 2013 Sindh 236), Iqbal Ahmad Dhudhi v. Federation of Pakistan and 5 others (2014 CLC 1348 ), Muhammad Qahir Shah and others v. Federation of Pakistan, Ministry of Railways, through Secretary , Islamabad and others (2014 YLR 2571 ), Habibullah Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47), Ms. Imrana Tiwana and others v. Province of Punjab and others (PLD 2015 Lah. 522), Province of Sindh and others v. Lal Khan Chandio and others (2016 SCMR 48) and Mian Shabir Asmail v. Chief Minister of Punjab and others ( PLD 2017 Lah. 597 ). 16. "The raison d'etre of public interest litigation is to break through the existing legal, technical and procedural constraints and provide justice, particularly social justice, to a particular individual, class or community , who on account of any personal deficiency or economic or social deprivation or State oppression are prevented from bringing a claim before the court of law." I considered the Petitioner 's request for treating this petition as PIL in the light of the jurisprudence discussed above and, relying on the law enunciated by the Hon'ble Supreme Court of Pakistan in Mian Asghar Ali v. Government of Punjab through Secretary (Colonies) BOR, Lahore and others (2017 SCMR 118), vide order dated 20-01-2020, allowed it to be converted into a constitutional petition under Article 199 of the Constitution. The office re-numbered the petition according ly. Consequent thereupon, the Petitioner was directed to implead the following as respondents: (i) Province of the Punjab (through the Chief Secretary); (ii) Secretary , Labour & Hum an Resource Department; (iii) Secretary , Human Rights and Minorities Affairs Department, Government of the Punjab, Lahore; (iv) Additional Secretary , Punjab Treaty Implementation Cell (PTIC), HR & MA, Lahore; (v) Inspector General of Police, Punjab, Lahore; (vi) Deputy Commissioner , Bahawalpur; (vii) District Police Officer, Bahawalpur; (viii) Deputy Director , Social Welfare, Bahawalpur; (ix) District Incharge, Child Protection Bureau, Bahawalpur; (x) Deputy Director , Social Security , Bahawalpur; (xi) Deputy Director , Education Department, Bahawa lpur; and (xii) Director , Labour Welfare, Bahawalpur . In compliance with that direction the Petitioner submitted amended petition after which notices were issued to the newly-added respondents. On 29-1-2020, Babar Naseer , President of the District Brick Kilns Union, Bahawalpur , filed C.M. No.567/2020/BWP for being impleaded as a respondent which was accepted by this Court. The learned counsel for the Petitioner then submitted amended memo of parties which was placed on record. 17. The learned counsel for the Petitioner submitted that forced labour was rampant despite constitutional and statutory prohibitions. Tens of thousands of men, women and children were suffering under it's yoke with no possibility of deliverance. He prayed that a writ of mandamus be issued to the Respondents to implement the laws in force. 18. The learned Assistant Advocate General submitted that Article 3 of the Constitution commands the State to ensure elimination of all forms of exploitation and in compliance thereof bonded labour was abolished in 1992 through the Abolition Act. This was followed by the Prohibition Act of 2016 and the Restriction of Employment Act to eradicate child labour . He contended that the government was fully conscio us of its obligations and was3
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continuously striving to improve not only the legal framework but also enforcement of the existing laws. He added that it had made substantial progress in this regard and had achieved several milestones. 19. The Labour and Human Resource Department, Government of the Punjab, filed comments stating that situation regarding bonded labour had considerably improved in the province during the last decade particularly at the brick kilns. So far as child labour was concerned, the Department submitted, it was actua ted by (i) poverty , (ii) low wages of the adults, (iii) unemployment, (iv) migration to urban areas, (v) large families, (vi) children being cheaply available, (vii) non-existence of provisions for compulsory education, (viii) illiteracy and ignorance of parents, and (ix) traditional attitudes. The government had, therefore, adopted three-pronged strategy to eradicate it: (a) legislative reforms, (b) child labour survey , and (c) social reforms through the Annual Development Programme. The Prohibition Act of 2016 and the Protection of Employment Act were being strictly implemented and during the year 2019 following actions were taken under the said laws: The Punjab Prohibition of Child Labour at Brick Kilns Act, 2016 Year No. of inspectionsChild labourers foundBrick kilns sealedFIRs lodged Arrests 2019 10,362 959 5 846 602 The Punjab Restriction on Employment of Children Act, 2016 Year No. of inspectionsChild labourers foundBrick kilns sealedFIRs lodgedArrests 2019 30,676 2673 25 2304 1191 20. The Labour Department added that a four days special campaign regarding implementation of minimum wages under the Punjab Minimum Wages Act, 2019, was conducted from 8th to 11th January , 2020, in all the districts of Punjab during which industrial and commercial establishments, including the brick kilns sector , were inspected. The statistics of the said campaign are as under: Statute No. of inspections No. of violations found No. of prosecutions lodged Punjab Minimum Wages Act, 20196105 7534 7634 21. The Director , Labour Welfare Department, Bahawalpur Division, filed separat e comments. He submitted that implementation of the above-mentioned laws within his remit was quite satisfactory . In the year 2019 no case of bonded labour was reported in District Bahawalpur . However , 25 FIRs were registered under the Prohibition Act of 2016 during that period. A three days special campaign was conducted from 9th to 11th December , 2019, in industrial and commercial establishments and in 33 inspections only one violation of child labour laws was found in respect of which one FIR was registered. In another four-day campaign (from 8th to 11th January , 2020) in Bahawalpur Division regarding implemen tation of the Punjab Minimum Wages Act, 2019, a total of 13 inspections were conducted and 81 violations were found. 22. The Deputy Commissioner , Bahawalpur , and the Director , Labour Welfare, District Bahawalpur , submitted joint comments stating that despite limited financial and human resources they were "quite cognizant" of the situation and had taken all legal and administrative measures to curb the menace of bonde d labour and child labour . They further stated that Government of the Punjab had launched EBLIK-4D, a Project for Elimination of Bonded Labour in four districts of the province, including Faisalabad, Gujrat, Bahawalpur and Sargodha, under the Labour & Human Resource Department. The said project aimed at issuance of CNICs and Birth Registration Certificates, distribution of hygiene kits to brick kiln workers, arranging health screening camps for them and their families, arranging awareness sessions for them, providing education to their children and, lastly , extending veterinary services to their animals. According to the Deputy Commissioner , EBLIK-4-D was being implemented in Bahawalpur District with full vigour and had achieved the following results:
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(a) 50 Non-Formal Education Centers were established at 50 brick kilns in which 2775 (1242 male and 1503 female) learners were enrolled. Out of them 40 Non-Formal schools were mainstreamed in Formal Government and Literacy Schools (Male:531, Female:582). 1113 learners were mainstreamed into nearby formal schools. At present 10 NFECs are running at brick kilns. (b) 10 Adult Literacy Centers were established at brick kilns in which 219 adult learners were enrolled. (c) Two teachers training programmes were conducted at the Government SD High School, Bahawalpur , and training certificates were awarded to 43 newly-recruited teachers. (d) 3009 CNICs were processed and delivered to the brick kiln workers. (e) 635 birth registrations were processed and delivered to the brick kiln workers. (f) 1750 hygiene kits were distributed among NFE learners at school. (g) Medical camps were held at 39 brick kilns for learners and brick kiln workers. (h) 18 awareness sessions were conduc ted at brick kilns on the topic of "Socio Psycho & Early Child Education" and awareness of the Legal Aid Service Unit. (i) Veterinary Assistant of the project provided veterinary treatment to 326 animals of the brick kiln workers and 32 cases were referred to veterinary hospitals. 23. The Punjab Treaty Implementation Cell submitted that there was a need for harmonization of domestic laws and their practical implementation in the light of international obligations. PTIC had conducted a gap analysis of 27 core Conventions out of which eight related to labour . The analysis had been shared with the concerned departments, including Labour and Resource Department, for necessary action. 24. Ch. Riaz Ahmad, Advocate, who appeared for Babar Naseer , President of the District Brick Kilns Union, Bahawalpur (Respondent No.16), submitted that all the brick kiln owners were faithfully complying with the labour laws, particularly those mentioned hereinabove. However , he complained that officials of the Labour Department unduly harassed them. Discussion 25. Slavery has existed since ancient times but 1815 Declaration Relative to the Universal Abolition of the Slave Trade started a movement to eliminate it. The Slavery Convention of 1926 and the Supplementary Convention of 1956 finally outlawed it. Nevertheless, there are certain practices which are termed as modern slavery . They consist of forced labour (including labour trafficking), sex trafficking (including child sex trafficking), bonded labour and debt bondage, domestic servitude in the form of domestic work, forced child labour , unlawful recruitment and child soldiers, and State-imposed forced labour . The International Labour Organization' s Forced Labour Convention, 1930 (C.No.29) defines forced labour as "all work or service which is extracted from any person under the menace of penalty and for which the said person has not offered himself voluntarily" [Article 2(1)]. The Convention, however , provides for certain exceptions, such as military service for work of purely military characters, normal civic obligations, work as a consequence of conviction in a court of law and carried out under control of public authority , work in emergency , wars or other calamities and minor communal services (Article 2.2). The ILO categorizes forced labour into five key areas which include slavery and abduction, misuse of public and prison works, forced recruitment, debt bondage, and domestic workers under forced labour situation. 26. Bonded labour…
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