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Petitioner: HUMAN RIGHTS COMMISSION OF PAKISTAN and 2 others VS Respondent: GOVERNMENT OF
Court Name: Supreme Court of Pakistan Judge(s): Sarmad Jalal Osmany, Zia Pervez, Sabihuddin Ahmed Title:HUMAN RIGHTS COMMISSION OF PAKISTAN and 2 others vs GOVERNMENT OF
JUDGMENT
Reported As: PLD 2009 Supreme Court 507 Result: Appeals allowed Judgment JUDGMENT ' SABIHUDDIN AHMED, J.---These appeals through leave of this Court are directed against a judgment of the High Court of Sindh, Circuit Bench, Hyderabad dated 9-1-2002 dismissing Constitutional Petition No,D-35 of 2000 preferred by the respondent No,14 and about 94 petitioners either under Article 199 of the Constitution or section 491, Cr.P.C. Calling in question the detention of large number of people in private custody. 2. It may be mentioned that the respondent No.14 is an agriculturist had moved the Court alleging that a large number of people having obtained loans from zamindars and having contracted to render services being otherwise bound to do so under the Sindh Tenancy Act, 1950 were misusing the provisions of section 491, Cr.P.C. To avoid repayment of the loans or to render services in accordance with the Tenancy Act and the contracts voluntarily entered into by them. On the other hand, the other petitions were preferred on behalf of the several individuals (hereinafter referred to as "detenues") alleged to be unlawfully detained by different land owners and subjected to forced labour in violation of the fundamental rights guaranteed to them and the law included in the Bonded Labour System (Abolition) Act, 1992. It appears that only three of the parties to the proceedings before the High Court namely the human rights Commission of Pakistan being the respondent in Constitutional Petition No, D-35 of 2000 and the petitioners in Constitutional Petitions Nos.465 and 475 of 2000 namely Kanji and Dongro have impugned the aforesaid consolidated judgment of the High Court. Leave to appeal was granted by this Court inter-alia to consider the
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"exact scope of the Bonded Labour System (Abolition) Act, 1992 and its effect on the provisions of the Sindh Tenancy Act, 1950 and other laws." 3. There does not appear to be any serious dispute as to the factual matrix of the controversy. The factum of indebtedness to land owners was not seriously questioned by the detenues who only alleged that they or their family members were forced to work on the lands against their will till debts were liquidated. At the same time, as is evident from para. 32 of the impugned judgment the landlord also did not seriously dispute the existence of any restraint upon the movement of the detenues. They only alleged that the Habeas Corpus jurisdiction of the Court was being invoked for exploiting the landlords who, on account of the refusal of the tenant to work of moving away from the land, were required to hire other labour at heavy cost at the time of harvesting the crop unless their tenants unreasonable demands were yielded to. It was further contended that the Sindh Tenancy Act, 1950 contained inbuilt provisions for resolving all disputes and the invocation of the jurisdiction of the High Court under Article 199 of the Constitution or section 491, Cr.P.C. Amounted to abuse of the process of law. 4. None of the private respondents including Dr. Mir 'Amanullah Talpur has entered appearance. However, we have heard apart from Mr. Iqbal Haider, learned counsel for the appellant, Mr. Amir Raza Naqvi, Learned Deputy Attorney-General on behalf of the Federal Government and Mr. Abdul Fateh Malik, Additional Advocate-General on behalf of the functionaries of the Provincial Government. While the former fully supported the appellant's case, the latter stoutly defended the impugned judgment and supported the viewpoint of the landlords in the controversy before us. 5. Mr. Malik argued that miseries of tenants arose out of non-implementation of land reforms stipulating maximum limit on the holdings of agricultural land and not from issues raised in this appeal but unfortunately NGOs were not raising real problems and were only supporting insignificant controversies. While we have great respect for the views of the learned counsel particularly in view of his long-standing experience and his struggle for the cause of the downtrodden but we reminded him that this Court was only concerned with the lis before it and he was appearing as a law Officer of the Provincial Government. Indeed, if he felt that the mandate of the law was not being enforced he could well advice his clients to do so but we were only concerned with the present controversy and could not pronounce upon extraneous matters. 6. Syed Iqbal Haider, learned counsel for the appellant mainly raised the following grounds:--- (i) that under section 5 of the Board Labour System (Abolition) Act, 1992 any custom or practice or a contract whether entered into before or after the commencement of the Act by virtue of which any person or a member of his family is required to do any work or any service as bonded labour shall be void and inoperative and according to section 6 any bounded debt that remained unsatisfied would stand extinguished; (ii) that no obligation of hari to work against his will, stated to be created under the Sindh Tenancy Act could remain valid and operative in view of the provisions of section 3 of the 1992 Act which has an overriding effect on all other laws; and (iii) that in any event there was no justification for the honourable High Court to decline relief to a person in unlawful confinement. 7. In support of his first contention learned counsel submitted that it might well be that the haris or other persons employed in agricultural might have received loans from landlords and might have also entered into contracts for rendering services as a consideration for the same. Nevertheless by virtue of the specific provisions of sections 5 and 6 not only the contract became void but even the obligation to repay the debt stood extinguished. In support of his contention learned counsel drew our attention to clauses (a) to (e) of section-2, section 5 and section-6 (subsections (1) and (2) of the Act which may be reproduced as follows:-- ' "Section-2.
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(a) "advance (peshgi)" means an advance (peshgi), whether in cash or in kind, or partly in cash or partly in kind, made by one person (hereinafter referred to as the creditor) to another person hereinafter referred to as the debtor); (b) "bonded debt" means an advance (peshgi) obtained, or presumed to have been obtained, by a bonded labourer under, or in pursuance of, the bonded labour system; (c) "bonded labour" means any labour or service rendered under the bonded labour system; (d) "bonded labourer" means a labourer who incurs, or has, or is presumed to have, incurred, a bonded debt; (e) "bonded labour system" means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered into an agreement with the creditor to the effect that,--- (i) in consideration of an advance (peshgi) obtained by him or by any of the members of his family [whether or not such advance (peshgi) is evidenced by any document] and in consideration of the interest, if any, due on such advance, (peshgi), or (ii) in pursuance of any customary or social obligation, or (iii) for any economic consideration received by him or by any of the members of his family; he would--- (1) render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefits of the creditor, for a specified period or for an unspecified period, either without wages or for nominal wages, or (2) forfeit the freedom of employment or adopting other means of livelihood for a specified period or for an unspecified period, or (3) forfeit the right to move freely from place to place, or (4) forfeit the right to appropriate or sell at market value any of his property or product or his labour or the labour of a member of his family or any person dependent on him, ' and includes the system of forced, or partly forced, labour under which a surety for a debtor enters, or has or is presumed to have, entered, into an agreement with the creditor to the effect that, in the event of the failure of the debtor to repay the debt, he would render the bonded labour on behalf of the debtor; ' Section-5. Agreement, custom, etc., to be void.---Any custom or tradition or practice or any contract, agreement or other instrument, whether entered into or executed before or after the commencement of this Act, by virtue of which any person, or any member of his family, is required to do any work or render any service as a bonded labourer, shall be void and inoperative. ' Section 6. Liability to repay bonded debt to stand extinguished.--(1) On the commencement of this Act, every obligation of a bonded labourer to repay any bonded debt, or such part of any bonded debt as remains unsatisfied immediately before such commencement, shall stand extinguished. (2) After the commencement of this Act no suit or other proceeding shall lie in any Civil Court, Tribunal or before any other authority for the recovery of any bounded debt or any part thereof. 8. Surprisingly, it appears from the impugned judgment that the question of appellant of the provisions of the above mentioned Act was not seriously taken up by the parties before the High Court. At the same time there lordships too, though referred to a precedent and mentioning some of its provisions, no effort to carefully examine the effect of the statute which prima facie appears to have a direct bearing on the controversy, was undertaken. Nevertheless, being a pure question of law and considering the principle that a Judge is required to wear all the laws of the country on the sleeve of his robe, as well as the fact that leave has already been granted to examine the provisions of this Act, we have considered these provisions carefully with the assistance of learned counsel.
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9. In the above context it needs to be observed that the abominable practice of bonded labour was taken judicial notice of this Court in the well known case of Darshan Masih alias Rehmatay and others v. The State (PLD 1990 SC 513) taken up by this Court in its jurisdiction to enforce fundamental rights under Article 184 (3) of the Constitution by way of public interest litigation. Apart from directing the release of the persons detained in flagrant violation of their fundamental rights interalia guaranteed by Article-11 the Court suggested effective measure to curb this practice through legislation, on the basis of recommendations of a Committee constituted by the Court. 10. In the report of the Committee "the peshgi system" was described as a cruel method of enslaving the workers for the rest of their lives. It was recommended, inter alia, that the system of bonded labour in all walks of life be abolished the advances by way of peshgis and rights accruing therefrom should stand extinguished and recovery of peshgis be made offences under the law through appropriate legislation. The above background needs to be kept in view which taking into consideration the provisions of the Act which is undoubtedly a piece of welfare legislation enacted only for the welfare of a disadvantaged section of the people aimed at curbing certain abominable practices. 11. It is evident from a bare reading of section-5 that even a voluntary contract whereby any person is required to render services as a bonded labourer will be void and inoperative. Section 2(d) defines a bonded labourer as a labourer who incurs or is presumed to have incurred a bonded debt. Under section 2(b) a bonded debt means an advance obtained by a bonded labourer under the Bonded Labour System which has been exhaustively defined in section 2(c) reproduced in para-6 of the judgment. It is, therefore, evident that all contracts whereby a person agrees to render services without wages or for nominal wages, forfeits the freedom of employment or movement or forfeits the right to appropriate or sell, at market value, any of his property or product of his labour must be held to be void. To this extent the statute basically gives effect to the mandate of. Article 11 of the Constitution prohibiting forced labour Article 15 guaranteeing freedom of movement and Article 23 guaranteeing the right to hold and dispose of property. It indicates that the Legislature in its wisdom envisaged an obligation to work against one's wishes for settlement of a private debt not to be one created for a public purpose nor a fetter upon the right of movement in the said context as a reasonable restriction in the public interest. 12. The above however, could only lead to the conclusion that while forced labour and clog on the freedom of movement by way of consideration for a repayment of debt would be impermissible, the outstanding amount could be recovered through normal legal channels. Nevertheless, taking into consideration the magnitude of exploitation of disadvantaged people arising from unequal bargaining position as can be, inter alia, inferred from the pronouncement of the Court and the report forming the basis of the final order in Darshan Masih's case the Legislature has moved a step further towards eliminating the abominable practice of bonded labour. It is in this context that sections 6 and 8 have to be seen. Section 6(1) stipulates that every obligation to repay a bonded debt or such part of the debt has remained unsatisfied on the date of the commencement of the Act shall stand extinguished. Section 6(2) bars any suit or proceedings before Civil Court or other Tribunal for recovery of any bonded debt and section 6(9) provides for abatement of such suits pending on the date of commencement of the Act. Section 8 not merely forbids a creditor to accept any payment against a bonded debt but also provides that doing so would render him liable to be punishable with imprisonment, which may extend to three years. 13. Mr. Iqbal Haider appears to be correct to the extent that on account of section 3 of the Act explicitly conferring an overriding effect to its provision, any provision in an earlier law repugnant thereto would be void and inoperative. We may add that on account of mandate of D Article-143 of the Constitution, having been enacted by the Parliament its provisions would prevail upon any
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existing law being made by a provincial legislature. Nevertheless to determine the extent of inconsistency it was imperative that a careful analysis of the provisions of the Sindh Tenancy Act was undertaken. Unfortunately this was neither done in the impugned judgment nor attempted by any of the learned counsel appearing before us. However, before proceeding to do so for settling the law in terms of the leave granting order, we might consider the alternate contention of the learned counsel for the appellant. 14. In the alternative Mr. Iqbal Haider urged that the appellants Kanji and Dongro were not the recorded tenants of any landlord and as such the provisions of the Sindh Tenancy Act were not attracted to their cases. Neither this contention was rebutted on a factual plane nor did the learned Additional Advocate-General argue that the Bonded Labour System (Abolition) Act, 1992 was inapplicable to the workforce in agriculture. Unfortunately, the Honourable High Court recorded and omnibus order to the effect that all disputes were to be resolved according to the mechanism provided in the Sindh Tenancy Act, without caring to arrive at a finding of fact in each case whether a landlord tenant relationship in terms of the aforesaid Act existed to confer jurisdiction upon the Tribunal to resolve the dispute. We are therefore of the view that in the absence of finding as to the existence of a tenancy under the Sindh Tenancy Act the Bonded Labour System (Abolition) Act, 1992 would be fully applicable to the case. 15. Coming to the question of conflict between the two laws. It is evident from the preamble of the Sindh Tenancy Act that the statute was enacted with the object of regulating the rights and liabilities of agricultural tenant and their landlord in the Province. Section-3 speaks of two classes of tenants i,e, permanent tenants and tenants at will who are entitled to occupation of land only for a cropping season under section 16 and liable to ejectment upon the end of the season. However in terms of section 8 a tenant at will acquires the rights of a permanent tenant in case he cultivates land of at least four acres for the same landlord for a continuous period of three years. When a tenant at will acquires the status of a permanent tenant under section-8 or is granted permanent rights upon the landlord under section-7, he acquires valuable interest in the land including the right to possession, the right to transfer (with the permission of the landlord) and devolution of tenancy rights upon a lineal descendant in the event of his demise of incapacity. Sections 4 to 7 and 10 to 12 elaborately describe the rights of a permanent tenant. Section 9 requires that the names of permanent tenants shall be entered in the record of rights maintained in a prescribed manner. 16. Sections 13 and 14 are the only provisions enabling termination of rights of a permanent tenant. Under section 14 a landlord may terminate the tenancy in case of bona fide requirement of land for self cultivation, a non-agricultural purpose or other specified reasons after giving the tenant one year's notice in writing stating the reasons. The bona-fides of the landlord are justiciable before a. Tribunal constituted under section 26 upon an application preferred by a tenant. In case the landlord fails to use the land for the purpose mentioned in the notice within one year from the date of taking possession, the tenant is entitled to restitution upon the same terms as existed at the time of termination. 17. Section 13 however stipulates termination of tenancy on grounds of certain acts of commission or omission of tenant i,e, abandonment of tenancy, using land for non-agricultural purposes without permission of, the landlord, failure to cultivate the land personally, failure to pay the due share of produce to the landlord or doing an act injurious to the land. Such ejectment can be caused through an order of the Tribunal where obviously the landlord would be required to establish that any ground for ejectment has taken effect. Sections 23 and 24 contemplate certain duties on the part of the tenants and the landlords respectively. Section 22 contemplates that notwithstanding any agreement usage or custom the landlord could not take any free labour from a tenant and any wages in respect of labour undertaken by the tenant shall be paid td him on the
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same day at determination of each day's work in accordance with the rates prevailing in the locality. 18. From the above provisions were are of the opinion that the Sindh Tenancy Act does not, strictly speaking, create a pure employer employees relationship between landlords and tenants. On the contrary it creates a quasi-partnership whereby the tenant acquires certain interests in the land and does not receive wages but only a share in the produce in so far as his obligations as a tenant are concerned. This nevertheless does not lead to the conclusion that a tenant could be forced to perform his obligations under the Act. The obligation to cultivate land is a condition precedent for protection of a tenant's valuable rights in property and in the event of his failure to do so the consequences are spelt out in the Act itself inasmuch as his tenancy could be terminated in accordance with section-13. Indeed a person may forfeit his legal rights acquired under a statute or a contract upon failure to perform his obligations but there could be no justification for forcing him to work against his will in flagrant violation of his fundamental rights guaranteed by the Constitution. The landlord's contention in the para-32 of the impugned judgment, therefore, merited outright rejection. 19. Mr. Iqbal Haider also appears to be right to the extent that the High Court was plainly wrong in assuming that every detenue was a permanent tenant of the respective landlord under the provisions of the Tenancy Act. In this context it was incumbent upon their lordships to examine in each case whether the detenue was recorded tenant of the landlord in terms of section 9 of the Sindh Tenancy Act and whether he enjoyed occupancy rights in respect of at least four acres of land. Obviously in the absence of such facts the landlords could not rely on the provisions of Tenancy Act. 20. It appears from the impugned judgment that reliance was placed en section 25 of the Sindh Tenancy Act for contending that a tenant could be forced to work on the land owners land till his outstanding liability from the debt owed by him was liquidated. It may therefore be necessary to examine the provisions of section 25 carefully, which are reproduced as follows:-- "25. General Provisions regarding debt.--(1) The produce of a tenant after deducting such portion thereof as is necessary for the purposes of providing until the next harvest of the due cultivation of the land and for the support of the tenant and his family may be appropriated towards the debt due from the tenant to his landlord. Explanation.--For the purpose of evaluating in cash the produce of the tenant, the wholesale control price fixed for the locality by the Government, and if no such price is fixed, the wholesale price prevailing in the local market shall be taken as the basis. (2) After making recoveries set forth in subsection (1), the balance of debt, if any, shall be deemed to be a floating debt recoverable, from the tenant's share of other crops. (3) In case a tenant is indebted to his landlord, it shall be his duty to deposit his shire of cotton in the landlord's store. Such cotton shall remain in the joint possession of the tenant and the landlord until it is divided or until delivered is taken by the buyer. (4) On termination of his tenancy, a tenant, if he be indebted to his landlord, shall be liable to pay off his debt before leaving." 21. #TS#It appears to have been inferred by the Honourable High Court on the basis of the language of the above quoted subsection (4) that even on termination of his tenancy the tenant, in the event of indebtedness to the landlord, could not leave prior to settlement of his outstanding liabilities under the debt and as such could be forced to continue rendering services. 22. In the above context, it needs to be seen that the fundamental rights guaranteed by Article-11 prohibits all forms of forced labour subject to the exception that compulsory service by a person under going punishment for offence or required by any law for a public purpose is permissible. The expression "public purpose" appears elsewhere in the Constitution i,e, Article 24(2) and other
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constitutions and statutes and has been interpreted by superior Courts. In the case of Huma Bai Framjee v. Secretary of State for India reported in (42 1.A. 44 PC) it was held by the privy council that "public purpose" would mean an object or aim in which general interest of the community as opposed to particular interest of individuals is directly and vitally concerned. The same view was followed inter alia by the Supreme Court of India in the case of. State of Bihar v. Kameshwar singh reported in (AIR 1952 SC 252) and a full Bench of Lahore High Court in the case of Allah Ditta v. Province of Punjab reported in (PLD 1997 Lahore 499). We are not aware of any precedent where a different view has been taken. Therefore a law requiring compulsory service for liquidation of individual debts would inevitably by ultra-vires Article 11 of the Constitution. 23. Moreover, while we have held that the Bonded Labour System (Abolition) Act, 1992 might not apply to tenants under the Sindh Tenancy Act in view of the special relationship between parties conferring interest in property created by latter statute it is evident that the moment that special relationship ceases to exist upon the termination of a tenancy, compulsion to work towards setting liabilities under a private debt would obviously reduce the status of a former tenant to that of a bonded labourer. As such the Act would be clearly applicable and not merely the obligation to work would be void but even the liabilities under the debt would stand extinguished. Therefore, we are entirely unable to uphold the inference drawn by the honourable High Court from section 25(4) of the Sindh Tenancy Act. 24. Being conscious of the obligation of a Court to make effort to save the constitutionality of a statute and applying the rule of harmonious construction we are of the view that reading section 25 as a whole shows that a debt incurred by a tenant is to be settled…
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