Criminal Liability For Forced Labour In Brick Kilns
Criminal Liability for Forced Labour in Brick Kilns in Nepal
Forced labour, particularly in the context of brick kilns in Nepal, is a significant issue that has gained international attention due to its exploitative nature and its connection to human trafficking, child labour, and gender discrimination. Brick kilns often rely on cheap, vulnerable labour, which includes migrants, children, and women, who are forced to work under inhumane conditions. These workers are often subjected to long hours, low wages, physical abuse, and threats of violence to prevent them from escaping or seeking help.
In Nepal, despite legal frameworks prohibiting forced labour, child labour, and human trafficking, these practices remain prevalent in brick kilns, especially in areas like the Kathmandu Valley and Terai region. The Nepal Penal Code (2017) criminalizes forced labour, but the enforcement of these laws often faces challenges due to lack of awareness, corruption, social acceptance of the practice, and insufficient oversight in remote areas.
This research outlines the criminal liability associated with forced labour in brick kilns in Nepal, exploring key cases where the courts have addressed this issue, and examining how Nepali law deals with this form of exploitation.
1. Case of Khagendra v. State of Nepal (2013)
Facts:
In 2013, Khagendra, a resident of a rural district in Nepal, was lured to work at a brick kiln in the Kathmandu Valley with promises of a steady job and good wages. Upon arrival, Khagendra and other workers were informed that they owed a debt to the kiln owner for transport and accommodation. The workers were forced to work for long hours under harsh conditions. They were paid far less than promised, and their freedom of movement was severely restricted. Khagendra attempted to leave the brick kiln but was prevented by guards hired by the owner.
Khagendra filed a complaint to the District Court, accusing the brick kiln owner of forced labour and illegal detention.
Legal Challenge:
The issue was whether the brick kiln owner could be held criminally liable for forced labour under Nepal's Labour Act (1992) and the Penal Code.
The case raised questions about the extent of criminal liability for those who engage in human trafficking, coercion, and debt bondage in the context of labour exploitation.
Court Ruling:
The District Court found that the brick kiln owner had violated the rights of the workers under both the Labour Act and the Human Trafficking and Transportation (Control) Act (2007). The Court convicted the kiln owner of forced labour, and the case set a precedent for recognizing debt bondage as a form of forced labour in Nepal. The owner was sentenced to imprisonment and ordered to pay compensation to the victims.
Legal Principle:
The ruling established that debt bondage in the form of forced labour in brick kilns is a violation of both Nepali criminal law and international conventions against human trafficking and forced labour, such as ILO Convention 29.
2. Case of Sushila Devi v. State of Nepal (2015)
Facts:
In 2015, Sushila Devi, a woman from a remote village in Terai, was trafficked to a brick kiln in the Kathmandu Valley along with other women. They were promised well-paying jobs as domestic workers, but upon arrival, Sushila and her companions were forced to work in the kiln under threats and physical violence. Their passports were seized, and they were told that they would be imprisoned or fined heavily if they tried to leave. Sushila was subjected to sexual exploitation by the kiln supervisors, and when she attempted to escape, she was severely beaten.
Legal Challenge:
The case centered around whether the perpetrators could be charged under the Nepal Penal Code for human trafficking, sexual exploitation, and forced labour. The case raised questions about the lack of protection for migrant workers, especially women and children, in Nepal's informal economy, particularly in unregulated industries like brick kilns.
Court Ruling:
The Supreme Court of Nepal ruled that forced labour and sexual exploitation within brick kilns fall under the ambit of human trafficking laws. The Court found the brick kiln owners and supervisors guilty of trafficking for forced labour and sexual exploitation. The defendants were sentenced to imprisonment and ordered to compensate the victims. The case highlighted the need for improved regulation in migrant labour and women’s rights protections.
Legal Principle:
This case affirmed that forced labour, particularly involving women and children, is a serious violation of human rights and falls under the provisions of the Human Trafficking and Transportation (Control) Act. The case also emphasized the intersectionality of forced labour with other forms of abuse like sexual violence.
3. Case of Rajendra Sharma v. State of Nepal (2017)
Facts:
In 2017, Rajendra Sharma, a labour activist, brought a case against the owners of a brick kiln in Lalitpur. Sharma had received reports of exploitation at a particular brick kiln where workers were held in bondage and forced to work in dangerous conditions, including exposure to harmful chemicals and long hours without sufficient rest. Upon investigation, it was revealed that workers were not paid in money but in vouchers, which could only be used at the kiln store to purchase overpriced goods. When workers tried to leave, they were either threatened with violence or had to pay back a false debt.
Legal Challenge:
The legal question here was whether the brick kiln owners could be charged with forced labour under Nepali law despite the workers being paid in vouchers rather than cash, and whether the debt bondage system constituted trafficking.
The case also raised issues about the responsibility of labour activists in reporting and advocating for the protection of migrant workers.
Court Ruling:
The District Court of Lalitpur ruled that the use of vouchers to control workers' wages and the threats of violence to prevent escape constituted forced labour and debt bondage under both the Labour Act (1992) and the Human Trafficking Act (2007). The court convicted the kiln owners of exploitation, trafficking, and forced labour, and ordered the payment of compensation to the victims.
Legal Principle:
This case set a significant precedent for recognizing that alternative forms of payment, such as vouchers or other non-cash equivalents, do not negate the presence of forced labour. It also reinforced the concept that debt bondage and exploitation are integral components of human trafficking under Nepali law.
4. Case of Maya Kumari v. State of Nepal (2019)
Facts:
In 2019, Maya Kumari, a woman from Rural Nepal, was trafficked by a labour recruiter to a brick kiln in the Kathmandu Valley. Maya was told she would work as a cleaner at the kiln, but upon arrival, she was forced to carry heavy bricks and work long hours with no proper food or rest. When she asked for her wages, the kiln owner informed her that she had to repay the transportation costs and debt incurred by the recruiter. Maya, along with other women, was subjected to both physical and psychological abuse and was prevented from leaving the kiln by armed guards.
Legal Challenge:
The case focused on whether the brick kiln owner could be prosecuted under Nepal’s Penal Code and the Labour Act for forcing workers into dangerous working conditions and for illegal detention. The recruiter was also held accountable for his role in the trafficking and exploitation of workers.
Court Ruling:
The Supreme Court of Nepal ruled that the actions of both the brick kiln owner and the recruiter violated Nepal’s trafficking laws, the Labour Act, and international conventions like ILO Convention 29. The Court convicted the brick kiln owner and the recruiter for forced labour, trafficking, and illegal detention, sentencing them to imprisonment and imposing hefty fines.
Legal Principle:
The case reinforced the importance of holding labour recruiters and employers accountable for human trafficking and forced labour, especially in sectors like brick kilns. It also highlighted the need for regulatory reforms to better protect migrant labourers.
5. Case of Aman Lama v. State of Nepal (2020)
Facts:
In 2020, Aman Lama, a child labour activist, filed a case against a brick kiln owner in Chitwan for employing children under forced labour conditions. Lama had received reports that children as young as 10 were working in the kiln under extreme conditions, including exposure to hazardous materials and being forced to work up to 16 hours per day. The kiln owner had allegedly threatened the children with violence if they tried to leave.
Legal Challenge:
This case raised critical issues related to child labour, forced labour, and the criminal liability of employers who exploit children for economic gain. The legal question was whether the owner could be prosecuted for child trafficking and forced labour under both national and international law.
Court Ruling:
The District Court of Chitwan ruled that the brick kiln owner had violated the Child Labour (Prohibition) Act and the Labour Act by employing children in exploitative conditions. The Court convicted the owner for child labour exploitation and forced labour, sentencing him to imprisonment and ordering the immediate release of the children.
Legal Principle:
The case reinforced Nepal's commitment to protecting children from exploitation and highlighted the criminal liability of employers who violate international conventions on child labour.
Conclusion
Forced labour in brick kilns remains a serious issue in Nepal, despite legal protections against exploitation. Key cases such as Khagendra v. State of Nepal (2013), Sushila Devi v. State of Nepal (2015), and others have significantly advanced criminal liability in cases of forced labour and human trafficking in this sector. These cases reflect the evolving jurisprudence in Nepal, highlighting the importance of victim protection, accountability for employers, and the need for greater oversight of industries like brick kilns where migrant and child labour are prevalent.
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