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Petitioner: Syed SHABBIR HUSSAIN KAZMI VS Respondent: GOVERNMENT OF PAKISTANHonorable Justice SAEED-UR-REHMAN FARRUKHIrshad Ahmad Qureshi and Malik Rab Nawaz Noon
2006 P L C (C
2006 P L C (C.S.) 49
[Federal Shariat Court]
Present: Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman Farrukh, JJ
Syed SHABBIR HUSSAIN KAZMI and others
Versus
GOVERNMENT OF PAKISTAN and others
Shariat Petitions Nos. 8/L, 6/L of 1993, 36/L, 37/L, 58/L of 1992 and 10/L, 7/L, 9/L of 1993; decided on 10th October, 2005.
(a) Bonded Labour System (Abolition) Act (III of 1992)---
----Ss. 2(a)(b), (c), (d), (e), 5, 6, 7, 8 & 11---Constitution of Pakistan (1973), Arts. 203-D, 9, 10, 11, 14, 15 & 18- Repugnancy to Injunctions of Islam---Brick kiln owners had assailed Ss.21 5, 6, 7, 8 & 11 of the Bonded Labour System (Abolition) Act, 1992 as being repugnant to Injunctions of Islam---Validity---Held, impugned definitions in 5.2, Bonded Labour System (Abolition) Act, 1992 i.e. "advance (peshgi)", "bonded debt", "bonded labour", "bonded labourer" and "bonded labour system" were not violative of Islamic Injunctions on the subject; on the contrary, these were intended to achieve the lofty ideals put forth by the Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the fundamental rights of working class in the society in particular---Likewise Ss. 5, 6, 7, 8 & 11 of the Act were not repugnant to the Injunctions of Islam as said provisions had been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations---Islamic Injunctions on the subject and principles recorded---Federal Shariat Court, however, observed that the object for which the Bonded Labour System (Abolition) Act, 1992 was passed could not be achieved so far---Court provided guidelines for the purpose and directed that copy of the present judgment be forwarded to the specified authorities.
The Bonded Labour System (Abolition) Act, 1992, as a whole, was a beneficial statutory dispensation of vital importance as it was intended to curb and put to irreversible end the reprehensible institution of bonded labour not only in the brick kiln industry but also in other sectors in the country like Haris tenants-at-will, labourers in mining industry, glass bangle industry, tanneries etc.
The Bonded Labour System (Abolition), Act, 1992 was passed by the legislature strictly in line with directives of the two judgments ofthe Supreme Court. By purporting to challenge the vires of the impugned provisions of the Act what the petitioners in the present case, really sought was the effacement of the binding effect of the two judgments, which was not permissible in law.
The judgments of Supreme Court declaring the law on the subject could not be called in question by a person or by a batch of persons though he/they might not be party to the judgments.
Supreme Court decision was binding on all persons though they were not party before Supreme Court.
Even an obiter in a judgment by Supreme Court carries binding effect.
A perusal of the said judgments of the Supreme Court would show that these indeed protected/upheld the following fundamental rights of the labourers:--
(i) Security of life or liberty of a person---Article 9.
(ii) Safeguard as to arrest and detention---Article 10.
(iii) Prohibition of all forms of forced labour---Article 11.
(iv) Upholding of inviolability of dignity of man---Article 14.
(v) Guarantee of freedom of movement---Article 15.
(vii) Freedom of trade, business or profession---Article 18.
Islam had fifteen centuries ago etched out in detail the fundamental rights of the mankind by unequivocal commandment.
In Islam a workman is not entitled to anything until his work be finished.
Forced labour is repugnant to Islam in the extreme.
How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is conveyed by probably his last Hadith shortly before he left this world and met his Creator.
Even if the worker does not claim his rights, according to Islam the owner should be alive to his rights and cognizant of his full responsibility; he should fulfil his obligations, failing which he shall be held answerable before God on the Day of Judgment.
Naturally, the proprietor or the owner would like to extract as much work as possible from the servant or worker. But Islam aims at expelling this idea out of his mind.
Islam has called exploitation of worker the gravest possible violation of human rights and decency; it has also laid down guidelines for prevention thereof. It cannot tolerate his exploitation, in any form, for a single moment.
Thus Islam has formulated a social system based on the fundamental human rights and the relationship between the owner and the worker is comprehensively covered by it. This system favours neither the emergence of a capitalist class nor of a technocrat class or bureaucracy but of an egalitarian system in which the rule of law prevails.
Contention of the petitioner that the workers employed in brick kiln performed their duties under contract with the owners which was with reference to the practice of payment of advance amount to them by way of peshgi, is wholly without force.
Islam has taken great care to ensure that the worker is not duped/lured into performance of contract which is fraudulent/unconscionable/ vague. Such a course of action leads to exploitation of the workers as the employer by handing over certain amount to the worker obtains assurance from him that he would continue to work till such time that the services rendered by him do not offset/liquidate the liability of said amount.
It is common knowledge that almost all the workers in the brick kiln are illitrate; no deed is drawn specifying the terms and conditions of the contract with the result that the worker engaged at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have discharged the liability qua the advance amount. After extracting sufficient work from him, if and when the worker approaches the employer for settlement of account, he is usually confronted with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance amount having been utilized by the worker, the employer conveniently hands over further amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem. There cannot be worse form of exploitative bondage of labour. The advance (peshgi) is a tool of intimidation to extract surplus work without payment of wages therefor.
Islam is the greatest emancipator of mankind and zealously upholds the dignity of worker in particular. Perusal of the Ayats of Holy Qur'an and the Ahadiths of Prophet (peace be upon him), quoted in the judgment would prove that exploitation of down-trodden and toiling labourer is strictly forbidden so that he is saved from eking out his livelihood in abject servitude. The Peshgi system being vague and unconscionable, besides being exploitative in nature, is violative of the Injunctions of Islam.
The Holy Prophet (peace be upon him) had interdicted the employment of a labourer without prior fixation of his wages.
Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is postulated that the nature and extent of the job entrusted to the workers should be well-defined at the time of the contract. The worker, on the completion of the job, is to be paid his wages without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed amount as his wages.
Definition in the Bonded Labour System (Abolition) Act, 1992 are not violative of Islamic Injunctions on the subject. On the contrary, these are intended to achieve the lofty ideals put forth by Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the Fundamental rights of working class in the society in particular.
Likewise the impugned sections 5, 6, 7, 8 and 11 of the Act cannot be held to be repugnant to the Injunctions of Islam, as these provisions have been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations.
Federal Shariat Court, however, observed that the object for which the Act was passed could not be achieved so far. Almost every day reports about unlawful detention of labourers, working in different brick kilns along with their family members, for extracting forced labour from them, appear in the National press.
Perusal of the act would show that under section 9 the Provincial Government had been conferred powers to impose such duties on a District Magistrate (now District Nazim), as may be necessary to ensure that the provisions of the Act are properly enforced.
Likewise, under section 10 the District Magistrate/District Nazim and the officer designated by him have been held responsible for promotion of the welfare of the freed bonded labourer by securing and protecting his economic interests.
Section 15 provides for constitution of Vigilance Committees at District level comprising of elected representatives of the area, representatives of the District Administration, Bar Associations, Press, recognized Social Services and Labour Departments of the Federal and Provincial Governments.
It is unfortunate that so far no specified authority, (vide section 9) in any district in Pakistan has taken care to exercise its powers so as to alleviate the misery and torture being inflicted upon the brick kilt labourers by many owners, in their respective jurisdictions. Likewise, no Vigilance Committees have been formed anywhere in the country. This state of affairs is alarming, to say the least. It has immensely distressed the Court.
It is for the Government functionaries to ensure the due and purposeful enforcement of the Act, in its letter and spirit, so that the menace of forced labour, rampant in brick kilns, and other similar establishments, all over the country, is checked and comprehensively exterminated.
A brick kiln squarely falls within the purview of "factory" vide section 20) of the Factories Act, 1934. Industrial Relations Ordinance, 1969 and West Pakistan (Standing Orders) Ordinance, 1968 are also attracted to such establishment. It is high time that all the brick kilns are duly registered as factories to enable the Labour Inspector to pay regular visits to them and take suitable action/measures, in accordance with the Labour Laws, to achieve the objective of banishment of practice of forced labour from this industry.
As late as in 2004 Bonded Labours Research Forum, in collaboration with the Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan and I.L.O. carried out assessment/study of bonded labour qua different sectors of life in Pakistan, inter alia, the brick kilns. Dr. Ali Ercelawn of Pakistan Institute of Labour and Research Forum did a commendable job in preparing a paper after thorough study of the problem, suggesting ways and means of curbing the pernicious practice of bonded labour in brick kilns and other similar segments of society. No action, so far, seems to have been taken on this report either. The statutory functionaries must realize their responsibility of enforcement of the mechanism as provided by the Act i.e. Bonded Labour System (Abolition) Act, 1992 and see to it that the desired results are achieved.
Federal Shariat Court directed that a copy of present judgment be forwarded to (i) Ministry of Law, Justice and Parliamentary Affairs; (ii) Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan, as well as to all the Provincial Governments in the Country.
Enforcement of Fundamental rights re: Bonded Labour in Brick Kiln Industry 1989 SCMR 139; PLD 1990 SC 513; Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC -179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358; M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84; 5:1; 29th Forced Labour Convention, 1930; Universal Declaration of Human Rights by United Nations on 10th December, 1948; Charter of the United Nations; 28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No.1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al Kubra, Vol.6, P. 120
(b) Constitution of Pakistan (1973)---
----Art. 189---Judgment of Supreme Court---Binding nature---Judgments of Supreme Court declaring the law on the subject cannot be called in question by a person or by a batch of persons though he/they might not be party to the judgment; even an obiter in a judgment by Supreme Court carries binding effect.
Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621;. Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358 and M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84 ref.
(c) Islamic jurisprudence-
----Dignity of labour in Islam.
28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No. 1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al
Irshad Ahmad Qureshi for Petitioners (in Sh.Ps. Nos.8/L, 6/L, 7/L, 9/1- of 1993 and 36/L, 37/1, of 1992).
S.M. Ayub Bukhari for Petitioner (in Sh. P. No.58/I of 1992).
Irshad Ahmad Qureshi and Malik Rab Nawaz Noon for Petitioners (in Sh. P. No. 10/L of 1993.
Sardar Abdul Majeed for Federal Government (in Sh.P. No.9-L of 1993).
Amin-ud-Din Brazo, Addl.A.-G. Balochistan and Muhammad Shuaib Abbasi, for A.-G. Balochistan (in Sh.P. No.9-L of 1993).
Shafqat Munir Malik, Asstt. A.-G. for A.-G. Punjab (in Sh.P. No.9-L of 1993).
Muhammad Arshad Lodhi, A.A.-G. and Muhammad Shoaib Abbasi for A.-G. Sindh (in Sh.P. No.9-L of 1993).
Muhammad Sharif Janjua for A.-G., N.-W.F.P. (in Sh. P. No.9-L of 1993).
Miss Asma Jahangir: Amicus Curiae.
Zafarullah Khan for Pakistan Institute of Labour Education and Research.
Dates of hearing: 2nd November, 14th December, 2004, 22nd and 23rd February, 2005.
JUDGMENT
SAEED-UR-REHMAN FARRUKH, J.---By this judgment we propose to dispose of the following eight matters as common questions of law and facts arise therein:
Shariat Petition No.36-L of 1992.
(1) (Rana Saeed-uz-Zaman and others v. Government of Pakistan).
Shariat Petition No.37-L of 1992.
(2) (Niaz Ali and others v. Government of Pakistan).
Shariat Petition No.58-1 of 1992.
(3) (Ghulam Khan Bangash v. Federation of Pakistan).
Shariat Petition No.6-L of 1993.
(4) (Haji Muhammad Amin and others v. Secretary, Ministry of Law).
Shariat Petition No. 7/L of 1993.
(5) (Mian M. Akram and others v. Secretary, Ministry of Law).
Shariat Petition No. 8-L of 1993.
(6) (Syed Shabbir Hussain and others v. Government of Pakistan).
Shariat Petition No.9-L of 1993
(7) (Gulfraz Ahmad and others v. Secretary, Ministry of Law, Government of Pakistan).
Shariat Petition No. 10-L of 1993.
(8) (Haji Muhammad Aslam and others v. Secretary, Ministry of Law).
2. Through the above Shariat Petitions, under Article 203-D of the Constitution of the Islamic Republic of Pakistan, the petitioners who are brick kiln owners, have assailed various provisions of the Bonded Labour System (Abolition) Act, 1992 (hereinafter called "the Act"), as being repugnant to injunctions of Holy Quran and. Sunnah. Following declaration has been sought from this Court:--
"that the definitions of the `bonded debt', `bonded labour', `bonded labourer' and `bonded labour system' 'may kindly be declared as repugnant to the Injunctions of Islam."
3. The impugned definitions are reproduced as under:--
(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 persons (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 pertly 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 (peshghi) 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 of 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, entitled, 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;
4. Besides, in these Shariat Petitions, some of the provisions of "the Act" i.e. sections 5, 6, 7, 8 and 11 have also been brought tinder challenge as being contrary to the Islamic Injunctions. These sections read as under-
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.--On the commencement of this Act, every obligation of a bounded labour 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 proceedings shall lie in any Civil Court, Tribunal or before any other authority for the recovery of any bonded debt, or any part thereof.
(3) Every decree or order for the recovery of bonded debt, passed before the commencement of this Act and not fully satisfied before such commencement, shall be deemed, on such commencement, to have been fully satisfied.
(4) Where, before the commencement of this Act, possession of any property belonging to a bonded labourer or a member of his family was forcibly taken by any creditor for the recovery of any bonded debt, such property shall be restored, within ninety days of such commencement, to the possession o1' the person from whom it was seized.
(5) Every attachment made before the commencement of this Act for the recovery of any bonded debt shall, on such commencement, stand vacated; and, where, in pursuance of such attachment, any movable property of the bonded labourer was seized and removed from his custody and kept in the custody of any Court, Tribunal or other authority pending sale thereof, such movable property shall be restored, within ninety days of such commencement, to the possession of the bonded labourer:
Provided that, where any attached property was sold before the commencement of this Act, in execution of a decree or order for the recovery of a bonded debt, such sale shall not be affected by any provision of this Act.
(6) Subject to the proviso to subsection (5), any sale, transfer or assignment of any property of a bonded labourer made in any manner whatsoever before the commencement of this Act for recovery of bonded debt shall not be deemed to have created or transferred any right, or interest in or encumbrance upon any such property and such property shall be restored, within ninety days of such commencement, to the possession of the bonded labourer.
(7) If restoration of the possession of any property referred to in subsection (4) or subsection (5) or subsection (6) is not made within ninety days from the commencement of this Act, the aggrieved person may, within such time as may be prescribed, apply to the prescribed authority for the restoration of the possession of such property and the prescribed authority may, after giving the creditor a reasonable opportunity of being heard, direct the creditor to restore to the applicant the possession of the said property within such time as may be specified in the order.
(8) An order made by any prescribed authority under sub-section (7) shall be deemed to be an order made by a Civil Court and may be executed by the Court of the lowest pecuniary jurisdiction within the local limits of whose jurisdiction of the creditor voluntarily resides or carries on business or personally works for gain.
(9) Where any suit or proceeding for the enforcement of any obligation under the bonded labour system, including a suit or proceeding for the recovery of any advance (peshgi) made to a bonded labourer, is pending at the commencement of this Act, such suit or other proceedings shall, on such commencement, stand dismissed.
(10) On the commencement of this Act, every bonded labourer who has been detained in civil prison, whether before or after judgment, shall be released from detention forthwith.
Section 7. Property of bonded labourer to be freed from mortgage, etc.---(1) All property vested in a bonded labourer which, was immediately before the commencement of this Act, under any mortgage, charge, lien or other encumbrance in connection with any bonded debt shall, insofar as it is relatable to the bonded debt, stand freed and discharged from such mortgage, charge, lien or other encumbrance; and where any such property was, immediately before the commencement of this Act, in the possession of the mortgagee or the holder of the charge, lien or encumbrance, such property shall, except where it was subject to any other charge, on such commencement, be restored to the possession of the bonded labourer.
(2) If any delay is made in restoring any property referred to in subsection (1) to the possession of the bonded labourer, such labourer, shall be entitled, on and from the date of such commencement, to recover from the mortgagee or holder of the lien, charge or encumbrance, such mesne profits as may be determined by the Civil Court of the lowest pecuniary jurisdiction within the local limits of whose jurisdiction such property is situated.
Section 8. Creditor not to accept payment against extinguished debt.---(1) No creditor shall accept any payment against any bounded debt which has been extinguished or deemed to have been extinguished or fully satisfied by virtue of the provisions of this Act.
(2) Whoever contravenes the provision of subsection (1), shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than fifteen thousand rupees, or with both.
(3) The Court convicting any person under subsection (2) may, in addition to the penalties which may be imposed under that subsection, direct such person to deposit in Court, the amount accepted in contravention of the provisions of subsection (1), within such period as may be specified in the order, for being refunded to the bonded labourer.
Section 11. Punishment for enforcement of bonded labour.---Whoever, after the commencement of this Act compels any person to render any bonded labour shall be punishable with imprisonment for a terms which shall not be less than two years nor more than five years, or with fine which shall not be less than fifty thousand rupees, or with both.
5. The facts, in brief, necessary to understand the genesis of these" cases are as follows. Two complaints, one by the labourers and other by the owners of some brick kilns, moved before Supreme Court of Pakistan, were taken up for adjudication by it in exercise of its powers under Article 184 of the Constitution of Islamic Republic of Pakistan. The complaint made by the labourers was that the owners were pressing them to work at their brick Kilns against Peshgis (advances) and on their refusal they were…
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