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Kadar Vs. Muthukoya Thangal - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 857 of 1959
Judge
Reported inAIR1962Ker138
ActsConstitution of India - Article 23(1); Laccadive Islands and Minicoy Regulation, 1912
AppellantKadar
RespondentMuthukoya Thangal
Appellant Advocate K. Mohammed Naha and; V.P. Marakkar, Advs.
Respondent Advocate V.P. Gopalan Nambiar and; V. Bhaskaran Nambiar, Advs.; K
DispositionPetition partly allowed
Cases ReferredBailey v. Alabama
Excerpt:
constitution - personal services - laccadive islands and minicoy regulation, 1912 and article 23 (1) of constitution of india - constitutionality of decree that upholds right to receive personal services challenged - agreement for personal services in lieu of existing debts or breach of contract not supported by law - remedy available is to sue for damages and not to compel for personal services - said condition violates article 23 (1) - unconstitutional decree set aside. - - 6/46 in the androth amin's court, for his failure to render personal tenant services to his family and for damages for such non-performance. the learned counsel urged that section 8 deals with what an amin can do for failure to obey the reasonable orders of an amin. there is nothing illegal or bad in law. under.....c.a. vaidialingam, j.1. the question that arises for decision in this writ petition is as to whether the decree granted by the two subordinate authorities declaring the right of the plaintiff-respondent to enforce his rights to obtain, personal services from the petitioner-defendant is opposed to the provisions of clause (1) of article 23 of the constitution.2. article 23 is to the following effect;'right against exploitation (1) traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) nothing in this article shall prevent the state from imposing compulsory service for public purposes, and in imposing such service the state shall not make any discrimination.....
Judgment:

C.A. Vaidialingam, J.

1. The question that arises for decision in this writ petition is as to whether the decree granted by the two subordinate authorities declaring the right of the plaintiff-respondent to enforce his rights to obtain, personal services from the petitioner-defendant is opposed to the provisions of Clause (1) of Article 23 of the Constitution.

2. Article 23 is to the following effect;

'Right against Exploitation

(1) Traffic in human beings and Begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on ground only of religion, race, caste or class or any of them.'

Article 23 occurs under the heading 'Rights against Exploitation in Part III, dealing with Fundamental Rights.

3. The question arises in the following manner; The respondent instituted a suit against the petitioner as C. S. 6/46 in the Androth Amin's Court, for his failure to render personal tenant services to his family and for damages for such non-performance. According to the plaintiff, certain cocoanut trees and properties belonging to his family have been put in possession of the defendant's family for the latter's enjoyment on condition that the members of the family render certain personal services. It was the case of the plaintiff that the defendant was bound to perform One item of personal service called 'Nadappu', in view of the properties put in his possession, and he had also to perform two other Nadappus in consequence of certain items of properties taken away from another tenant and entrusted to the defendant. According to the custom in the Island, a Nadappu is generally calculated with reference to the number of cocoanut trees held by a party from his jenmi. One Nadappu consists of a duty on the part, of the defendant to sail the Odam of the landlord plaintiff carrying his goods from the Island to the Calicut Port or to any other port mentioned by the landlord. That service, as such, had to be done free of any remuneration. According to the plaintiff, the defendant defaulted in the rendering of such personal services and therefore, he wanted to obtain the said personal services enforced and also for payment of damages.

4. The defendant raised several contentions on facts namely that no property had been entrusted to his family, that he is not bound to render personal services, nor is he liable to pay compensation and that the case of the plaintiff about entrushnent of additional properties taken fromother tenants is also not true.

5. The suit was transferred to the Special Court of Karnavans for hearing and disposal. The said Special Court accepted substantially the cage set up by the plaintiff. On the evidence placed before them the Karnavans decided that the defendant had to render two services to the plaintiff and accordingly decreed that the defendant should render personal services to the plaintiff as claimed by the latter. For non-performance of such service for the period in question, the Karnavans again decreed that the defendant should pay rent at Rs. 18/- per annum and a compensation of Rs. 10/- per annum per Nadappu. Both the plaintiff and the defendant carried the matter in Appeals to the Collector of Malabar and those appeals were later transferred to the Court of the Secretary to the Administrator Laccadive, Mini-coy and Amindivi Islands. The plaintiff's appeal appears to have related to the disallowance of one more Nadappu claimed by him; whereas the defendant's appeal was on the ground that he is not liable to render any services at all and therefore, the decree compelling him to do personal services and also awarding damages, is illegal.

6. Both the appeals were heard and disposedof by the Secretary to the Administrator by a common order dated 14th February, 1959. The Secretary confirmed the judgment of the trial Court on all matters covered by the defendant's appeal. The Secretary also upheld the contentionsof the plaintiff regarding the additional Nadappu claimed by him and set aside the decree of the Karnavans on that point. That is, the result of the decision in the appeals was that the plaintiff's suit was decreed as prayed for by him. That is, the obligation on the part of the defendant to render personal service was also confirmed in appeal. Most of the points covered by tha decision of the two subordinate authorities are pure questions of fact on which ordinarily there need be no interference by this Court either under Article 229 or 227.

7. But, the contention that has been raised by Mr. K. Muhammad Naha, learned counsel for the writ petitioner-defendant is that the direction. about the obligation of the petitioner to tender personal services is opposed to Clause (1) of Article 23. The petitioner is not willing to render the personal services. The provisions relating to enforcement of the orders of the Amin are contained in the Laccadive Islands and Minicoy Regulation I of 1912. Chapter IV of the said Regulation deals with Civil Justice. Under Section 28 of the Regulation the decrees are to be executed by the Amin of the island where the suit is instituted. Under Section 29 it is provided that if a judgment-debtor wilfully refuses to obey the decree of the Court, he shall be liable to punishment under Section 8(2) and where the Amin is of opinion that such punishment is inadequate the procedure prescribed in Section 9 (4) is to be followed. The learned counsel urged that Section 8 deals with what an Amin can do for failure to obey the reasonable orders of an Amin. In particular, the counsel urged that under Sub-section (2) of Section 8, power is given to punish with imprisonment extending to a period of 15 days or with fine extending to Rs. 15/- or with both persons who disobey any reasonable order of an Amin Or other public servant.

8. Mr. Muhammad Naha learned counsel, in consequence, urged that in view of the decree of the two authorities making if obligatory on the part of the defendant-petitioner to render personal service, the petitioner faces the risk and danger of criminal action being taken under the provisions of Sub-section (2) of Section 8 of Regulation I of 1912. According to the learned counsel, throwing an obligation on the petitioner to render personal services coupled with a risk of facing a criminal punishment for non-compliance with the same, amounts to a form of 'forced labour' prohibited under Clause (1) of Article 23.

9. Mr. V. P. Gopalan Nambiar learned counsel appearing for the plaintiff-respondent urged, that there is no question of Article 23 being attracted in the particular circumstances of this case. There is no question of any 'forced labour' because the properties of the plaintiff have been according to the findings of the two Courts, entrusted to the family of the defendant for enjoyment on condition of the latter performing the Nadappu or personal services. According to the custom obtaining in the Island and as found by both the lower Court, persons who have been put in possession of properties for enjoyment on condition of rendering personal service are bound to render the said services. There is nothing illegal or bad in law. The obligations of the parties arise by vir-tue of the contract namely the petitioner enjoys the property of the plaintiff and the plaintiff isentitled to have the personal services of the petitioner in the manner stated in the plaint. It is open to the defendant, if he does not care to do the personal service to surrender the property and, walk out. According to the learned counsel, the defendant cannot continue to be in enjoyment of the properties of the plaintiff and still refuse to render the Nadappu or personal services.

10. The learned counsel further urged that in this case, parties had entered into a contract find what is sought to be done is to hold the defendant to his civil liability under the contract and there is no allegation that the defendant was compelled to enter into such contract. Under these circumstances when the plaintiff seeks to have the personal services enforced, there is no question of a 'forced labour' in this case.

11. In any event, the learned counsel urged that the plaintiff is admittedly entitled for damages for the breach of contract committed by the defendant and damages have also been actually awarded by both the Court and no interference should be made regarding those directions.

12. In view of the contentions set forth above it follows that the scope of Article 23(1) of the Constitution and its applicability or otherwise to the matter on hand directly arises. In view of this, I had issued notice to the learned Advocate-General to appear and assist this Court in response to the notice so issued, the learned Advocate-General has appeared and assisted, this Court by placing certain points of view.

13. Before I consider the various contentions set out above I may state that a history of these Islands, from which the matter has come to this Court, will be found in a decision of the Madras High Court of Rajagopalan and Rajagopala Ay-yangar, JJ., reported in T. Bamban v. Island Inspecting Officer Minicoy Islands, Malabar AIR 1957 Mad 433. Under Sub-section (1) of Section 60 of the States Reorganisation Act -- Central Act XXXVII/1956 this Court has got jurisdiction over the Laccadive, Minicoy and Amindivi Islands and that is how the matter comes to this Court.

14. The Regulation that is applicable, is the Laccadiye Islands and Minicoy Regulaicn 1 of 1912 as amended from time to time. Chapter III deals with Criminal Justice Chapter IV deals with Civil Justice. Under Section 21 occurring in Chapter IV it is provided that all questions relating to any rights claimed or set up in the civil courts of the Islands shall be determined in accordance with any custom not manifestly unjust or immoral governing the parties or property concerned, and, in the absence of any such custom according to justice, equity and good conscience. There are other provisions in Chapter IV which are not necessary to be noted. I have already adverted to the provisions of Sections 28 and 29 relating to execution of decrees and resistance to execution. I have also shown that under Section 29 if a judgment-debtor wilfully refuses to obey the decree of the Court, he shall be liable for punishment under Sub-section (2) of Section 8 or to an enhanced punishment under Sub-section (4) of Section 9. Sub-section (2) of Section 8 has also beenadverted to by me to show that disobedience of any reasonable order of an Amin makes a party liable for imprisonment extending to 15 days or with fine extending to Rs. 15/- or with both. It js not necessary to go to the provisions dealing with enhanced punishment.

15. Therefore, it will be seen that under the decree of both the subordinate Courts as they stand there is a duty or an obligation cast upon the defendant to render Nadappu or personal services to the plaintiff. If the decree is not obeyed by the petitioner, he faces the risk of action being taken under Sub-section (2) of Section 8 or an action by way of an enhanced punishment under Sub-section (4) of Section 9. Therefore, the question is whether this obligation to render personal service as decreed by the two Courts, the non-performance of which will render him to a criminal liability, as mentioned earlier, is such that it attracts the provisions of Article 23(1) of the Constitution.

16. Though Mr. Muhammed Naha attacked the various findings of facts recorded by the two authorities I decline to enter into those grounds of attack, because, in my view the findings so recorded, are pure questions of fact not amenable for interference by this Court either under Article 226 or 227. Therefore I am confining myself to the one and only question about the direction regarding personal services being violative or other-wise of Article 23(1). Mr. Muhammed Naha relied upon certain decisions in support of his contention that the present case comes within the mischief of Article 23(1).

17. The first decision relied upon by the learned counsel is the decision of the Judicial Commissioner's Court reported in State v. Jorawar, (Chowdhry, J. C.) AIR 1953 Him Pra 18. Under Section 2 of the Chamba Paid Forced Labour Act, it was provided that any adult male tiller of the soil, who was not exempt either under the notification or by ill-health from rendering paid forced labour wilfully refused to render the same, he shall be liable to a fine not exceeding Rg. 20/-. Section 4 of the said Act provided for imposition of fine and its recovery by a Revenue Court. Section 7 provided for payment of wages at the schedule rates current at the time. In the case before the learned Judicial Commissioner a person was levied a fine of Rs. 5/- for refusing to cany a load of some government property when required to do so by the Tahsildar. The learned Judicial Commissioner had to consider the legality of the fine imposed against the party. The learned Judicial Commissioner is of the view that the provisions of the Act in question are repugnant to the provisions of Article 23. It is further observed at page 19:

'That Article prohibits 'Begar' and other similar forms of forced labour, except for compulsory service for public purposes. Conscription for the defence of the country or for social services, are possible instances of imposition of compulsory Service for public purposes. That cannot however be, said of imposition of compulsory service for the purpose of carrying a load of government property by the Tahsildar or any Government servant in normal times. It is clear therefore, that the ser-vices of Jorawar were requisitioned merely for 'Begar' or forced labour.'

18. Primia facie, I am inclined to take theview that the said decision had to deal more with probably provisions of Clause (2) of Article 23 which do not directly arise before me. But any how, the point to be noted is that notwithstanding that wages at the schedule rates mentioned in Section 7 of the Chamba paid Forced Labour Ad had to be paid, nevertheless the learned Judicial Commissioner is of the view that the services of the party in question, were requisitioned merely for 'Begar' or forced labour. Therefore, in my view, the fact that a payment is made when personal services are to be done or has been made already on condition that personal services are to be clone, does not really affect the issue so long as a person is not willing, to do personal services voluntarily and is compelled to do it at risk of a criminal punishment. In such a case, in my view, it will amount to 'forced labour'.

19. The next case relied upon by Mr. mU-hammed Naha is the one reported in Chandra v. State of Rajas than, (Wanchoo, C. J. and Dave J.), AIR 1956 Raj 188. The petitioner in that case at-(acted the order of the Sirpanch of a Panchayat to the effect that one person from each house in the village should go with a spade and an iron pa'n. mating embankment of a tank on threat of a levy of a fine of Rs. 11/- if default is committed. There was also a further direction jn the order that the persons who are required to turn up should work from 7 A. M. to 5 P. M. without payment.

20. These directions were attacked by the petitioner on the ground that they amounted to 'forced labour' which was prohibited under Article 23 of the Constitution and that the Sirpanch had no authority to impose any fine. There were several other matters which were the subject of attack before the learned Judges and it is not necessary for me to advert to those aspects.

21. The learned Chief Justice Wanchoo, C. J., as he then was, holds that the Panchayat cannot force persons to perform labour and the order that has been passed is clearly against the provisions of Article 23 which forbids 'Begar' and the learned Chief Justice was also not satisfied that there is any provision in any statute or the rules empowering the Sirpanch to levy the fine in such circumstances. In this view, the learned Chiet Justice set aside the order of the Sirpaneh.

22. It will be seen from this decision that making it obligatory for individuals to perform services against their will amounts to 'Begar' or forced labour under Article 23(1).

23. The last decision that is cited by Mr. Muhammed Naha is the decision in Kahaosan Thangkhul v. Simirei Shailei (Tirumalpad, J. C.), AIR 1981 Manipur 1. In that case there appears to have been a custom in the village in question for each of the house-holders to offer one day's free labour to the Headman or Khhullakpa of the viilage for his being Headman and for his first settlement in the village. The appellant in that case refused to offer such free labour in 1939. In consequence, a case was instituted before the sub-Divisional Officer wherein a decree was passed that villagers were bound to give the usual labour According to custom and if any of the villagers refused to offer their labour, they can be fined up to Rs. 50 to be paid as compensation to the Village Headman. In consequence of this decree, the fine was being collected. There were certain other proceedings in that case. Ultimately, the appellant in that case challenged the custom as well as the liability to pay the fine of Rs. 50/- as being opposed to the provisions of Article 23(1) of the Constitution. The appellant in that case did not dispute the existence of the custom but he challenged that such a custom should not be recognised as it was opposed to Article 23 of the Constitution, which prohibits 'Begar' and other forms of forced labour. He also alleged that such custom is void under Article 13 of the Constitution. The learned Judicial Commissioner was of the view that such demand for labour, even if it is based on immemorial custom, is hit by Article 23(1). It is the further view of the Judicial Commissioner that when a Headman insists, on the basis of a custom, that every villager in the village should render one day's labour to him in a year, it only means that the village Headman is forcing or compelling the villagers to perform labour. In this view, the Judicial Commissioner set aside the decree which had recognised such a custom on the ground that such a custom is violative of Article 23(1) of the Constitution.

24. Mr. V. P. Gopalan Nambiar learned counsel for the plaintiff-respondent has relied upon two decisions, one, of the Allahabad High Caurt and the other of the Calcutta High Court. In State v. Banwari (Desai J.), AIR 1951 All 615, the learned Judge Mr. Justice Desai had to consider the question as to whether when a person is prohibited from refusing to render service merely on the ground that the person asking for it belongs to a scheduled caste, the provisions of Article 23 are followed. The particular enactment that the learned Judge bad to consider was the United Provinces Removal of Social Disabilities Act 1947. The learned Judge negatived such a contention in the following words at page 617 :

'The passing of the U. P. Act does not contravene this Article at all. When the provincial Legislature laid down that nobody shall refuse to render service merely on the ground that the person demanding it belongs to a scheduled caste it does not mean that it has infringed the prohibition on begar and other similar forms of forced labour.' when a person is prohibited from refusing to render service merely on the ground that the person asking for it belongs to a scheduled caste, he is not thereby subjected to forced labour similar in form to Begar.'

In my view, this decision does not at all in anyway advance the case of the plaintiff that his requiring the defendant to do personal service does not amount to forced labour.

25. The decision of the Calcutta High Court relied upon is the one in Dubar Goala v. Union of India (Bose, J.). AIR 1952 Cal 496. The question before the learned Judge was as to an agreement entered into by the petitioner therein with the Railway authorities to do extra work for the Rail-way for about two hours every day and when that agreement was sought to be enforced whether it amounted to compelling the petitioner to do forced labour and as such hit by Article 23(1). The learned Judge found that the petitioners therein were being given the privilege of the free user of the Railway premises for earning their livelihood as porters and it was as such licensed porters when they had agreed to do two hours' extra work for the Railway authorities every day by entering into a contract to that effect, and it is the further view of the learned Judge that the petitioners had voluntarily agreed to do this extra work and therefore, the contention for such a work being a forced labour cannot be accepted. The learned Judge states at Page 498 :

'Coming now to the question whether the work done by the petitioners can be regarded as Begar or forced labour within the meaning of Article 23(1) of the Coastitution, it appears to me that upon the facts of this case it cannot be said that the petitioners are doing Begar or forced labour. As I have pointed out already, the very idea that the petitioners had voluntarily agreed to do this extra work by entering into a contract to that effect repels the idea of their work being a forced labour.'

On this basis the learned Judge ultimately came to the conclusion that there is no element of force and the petitioners were also being paid some small remuneration for the two hours' labour that they were doing and therefore, it cannot be said that the petitioners were doing Begar or forced labour within the meaning of Article 23(1) of the Constitution.

26. The learned Advocate-General has urged that the approach made by the learned Judge in the Calcutta decision just now adverted to, is not correct and that the said decision should not be accepted by this court.

27. According to the learned Advocate-General, whether the party has entered voluntarily into a contract to do personal service and whether remuneration is paid for such personal service do not really matter. If a party is not willing to do personal service, the remedy of the other party to the contract may be by way of damages or to this case, to take proceedings for resumption of the lands from the defendant. But it is not open to a party to get a decree for personal services established especially when the non-performance of such personal service will result in a person like the defendant facing imprisonment or fine or both. Making a person to do personal service against his will, on pain of incurring a criminal liability, according to the learned Advocate-General, will bring it within the mischief of Article 23(1) as 'Begar or other similar forms of forced labour.'

28. I am inclined to accept the contentions of the leamed Advocate-General. With great respect, I am not inclined to adopt the reasoning of the Calcutta High Court in the decision referred to above. Further in the case before the leamed Judge there was no attempt on the part of the Railway administration to compel the giving of personal services by the porters in question on threat of any criminal prosecution or otherwise, But in the case before me, the position is entirelydifferent. The non-performance of the personal service by the petitioner, as I have already pointed out, will be treated as an offence punishable under Section 8 (2) of the Madras Regulation and as such it would clearly amount to an imposition, of 'forced labour'.

29. The learned Advocate-General has also-drawn my attention to the Constituent Assembly Debates to show that Begar is a sort of forced work extracted from labourers. In the Judicial and Revenue terms of Wilson's Glossary, Begar is stated to be

'A forced labourer, one pressed to carry burthens for individuals or the public. Under the old system, when pressed for public service, no pay was given. The Began though still liable to be pressed for public objects now receives pay. Forced labour for private service is prohibited.....

In Karnata Begari is the performance of the lowest village offices without pay, but requited by fees in grain, or rent free land.'

The learned Advocate-General has also drawn my attention to the corresponding provisions contained, in certain foreign Constitutions, I am giving below the provisions in United States of America Burma, Japan, United Nations, and Federal Re-public of Germany : America (U. S. A.)

The Thirteenth Amendment declares : Section 1. 'Neither slavery nor involuntary servitude except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

Section 2. The Congress shall have power to enforce this article by appropriate Legislation.' Burma. Article 19 of the 1948 Constitution states-:

'(1) Traffic in human beings and (2) forced labour in any form and (3) involuntary servitude except as a punishment for crime whereof the party shall have been duly convicted, shall be Prohibited.

Explanation:-- Nothing in this section shall prevent the State from imposing compulsory service for public purposes without any discrimination on grounds of birth, race, religion or class'. Japan.

Article XVIII of the Japanese Constitution of 1946 states: 'No person shall be held in bondage of any kind. Involuntary servitude, except as punishments for crime is prohibited.'

United Nations.Article 4 of the United Nations Declaration of Human Rights states :

'No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.' Federal Republic of Germany. Article 12 enunciates :

'(1) All Germans have the right of free choice of occupation, place and employment and place of training. The pursuit of occupation may be regulated by legislation.'

(2) No one shall be forced to do a particular job except in virtue of an established general obligation to perform a public service lying equally upon all.

(3) Forced labour is only permissible where e sentence of imprisonment is ordered by a court.'

30. It will be seen that the analogous provision in Article 19 of the Burma's Constitution more or less corresponds to our Constitutional provision in question with some slight variations. The learned Advocate-General invited my attention to a decision of the Supreme Court of America reported in Bailey v. Alabama, (1910) 219 U. S. 219: 55 Law Ed. 191. According to the learned Advocate-General, the principles applicable to such matters have been laid down by the learned Judges of the American Supreme Court though it is based upon the corresponding provision namely, the Thirteenth Amendment.

31. In order to appreciate the scope of the American decision, a few facts leading up to the decision will have to be stated. At page, 197 of the Law. Ed. the agreement entered into by Louzo Bailey with the Riverside Company is extracted In full. From that agreement it will be seen that in consideration of a sum of $ 15 received by Bailey from the Company the said Bailey consented, contracted and agreed to work and labour for the Company as a farm servant in the place mentioned therein from 30th of December, 1907, to the 30th of December 1908 for a sum of $ 12 to be paid every month. The said Bailey also agreed to render faithful service diligently and actively in accordance with the instructions of the Company. The Company in turn, agreed to employ the said Bailey as farm hand and also to pay him $10-75 every month. There was a legislation enacted by the Alabama State to the effect that when a person with intent to injure or defraud his employer enters into a contract in writing for the purpose of any service and obtains money or other property from the employer and without refunding money or the property refuses or fails to perform such act or service, he will be punished by a fine. In fact, the exact provision of the statute is stated at page 196 of 55 Law Ed.

32. In that case, the Jury found Bailey guilty and awarded damages to the Riverside Company and Bailey was also sentenced to pay a fine and there was also a provision for hard labour in default of payment of fine. An appeal to the Supreme Court of the State against the conviction by Bailey was not successful.

33. Before the Supreme Court of the United States several grounds of attack were made against the Statute enacted by the Alabama State. One of the grounds of attack with which I am, now concerned was that the Statute of the Alabama State violated the provisions of the Thirteenth Amendment of the Constitution of the United States.

34. In dealing with this question Mr. Justice Hughes, delivering the majority opinion of the Court, observes at page 200 of 55 Law Ed:

'We cannot escape the conclusion that al-though the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime those who simply fail or refuse to perform contracts for personal service in liquidation of a debt, and judging its purpose by its effect that it seeks in this way to provide themeans of compulsion through which performance of such service may be secured. The question is whether such a statute is constitutional.'

The learned Judge again observes at page 201 of the Law Ed :

'The plain intention was to abolish slavery of whatever name and form and all its badges and incidents, to render impossible any state of bondage; to make labour free, by Prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude.'

35. Dealing with the contention that the debtor in that case contracted to perform the labour which was sought to be compelled, the learned Judge again observed at page 201 :

'The fact that the debtor contracted to perform the labour which is sought to be compelled does not withdraw the attempted enforcement from the condemnation of the statute. The full intent of the constitutional provision could be defeated with obvious facility if through the guise of con-tracts under which advances had been made, debtors could be held to compulsory service. It is the compulsion of the service that the statute inhibits, for when that occurs, the condition of servitude is created which would be not less involuntary because of the original agreement to work out the indebtedness. The contract exposes the debtor to liability for the loss due to the breach, but not to enforced labour.'

36. Considering the question of rendering voluntary or involuntary service, Mr. Justice Hughes quotes from an earlier decision the following extract at page 202:

'Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in file character of the servitude. The one exists where the debtor voluntarily contracts to enter the service, of his creditor. The other is forced upon the debtor by some provision of law. But peonage however created, is compulsory service, involuntary Servitude. The peon can release himself therefrom, it is true, by the payment of the debt but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labour or rendering of services in payment of a debt. In the latter case the debtor though contracting to pay his indebtedness by labour of service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service.'

The learned Judge again states at page 202:

''The State may impose involuntary servitude as a punishment for crime, but it may not compel one man to labour for another in payment of a debt by punishing him as a criminal if he does not perform the service to pay the debt.'

37. Ultimately, the learned Judges reversed the conviction entered against Bailey in that case. The learned Advocate-General urges very strongly this Court to adopt the reasoning of the United States Supreme Court referred to above, notwithstanding that there is some difference in the word-ing of the Thirteenth Amendment of the American Constitution and Article 23(1) of our Constitution.

38. In my view, notwithstanding the difference in the phraseology of the two analogous Provisions the reasoning of Mr. Justice Hughes, which I respectfully adopt, applies with full force to the case on hand. I have already pointed out that the decree for personal service given by the two courts against the petitioner, if allowed to be executed for non-performance of such service by the petitioner, will render him liable for penal action being taken under the provisions of Section 8 (2) of the Madras Regulation referred to above. Therefore, this is a case, where the refusal by the petitioner to perform the service, though he has contracted to do the same inasmuch as it is also made an offence will certainly amount to 'Begar' or at any rate a similar form of forced labour. The provision in the Article in question is engrafted in order to provide a right against exploitation. The fact that the petitioner has contracted to do personal service or the further fact that certain properties of the plaintiff have been put in possession of the petitioner oh condition of the petitioner par-forming the personal service, will not, in my view, detract from the final conclusion to be arrived at namely that when the petitioner declined to per-form such personal services and the non-performance of such personal services will entail penal consequences under the Madras Regulation, viz., Laccadive Islands and Minicoy Regulation I of 1912, it amounts to 'Begar' or at any rate, a similar form of forced labour. The plea that the plain-tiff is only seeking to enforce his rights under the contract is no answer to the prohibition contained under Article 23(1).

39. Therefore the result is that the Orders of both the subordinate authorities directing the defendant to render personal services, cannot be sustained and the said directions will stand deleted. In all other respects, the orders of the two courts will stand.

40. This is not to say that the plaintiff hasno rights whatsoever. It is open to him to sue fordamages or compensation for breach of contract orto take proceedings to resumption of the propertywhich according to him, has been put in the possession of the defendant as a condition for performing personal service. The writ petition isallowed to the extent indicated above and partieswill bear their own costs. I express my thanks tothe learned Advocate-General who has appearedin response to my request and given me assistance.


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