The new labour laws

6.4.1 The pass system

The most significant piece of legislation consolidating previous enactments was Ordinance No. 31 of 1867,^[731] as supplemented by Government Notice 166 of 11 November 1868.

acquiring Old Immigrant status, as well as of every Old Immigrant on the expiry of this written service contract.

Old Immigrants orally engaged would be unable to acquire their pass unless the job contractor personally appeared in front of the police,^[734] and those occu­pied as day labourers or similar had first to procure a license to authorize them exercising their chosen trade.^[735] Further, it was stipulated that “every Immigrant licensed to work by the day, or to perform job-work, shall be bound to wear conspicuously on his right arm a badge bearing upon it the word �Job-man’ and the number of his license.”^[736] The regulations provided that a new pass had to be applied for in a number of circumstances, such as change of residence^[737] or occupation,^[738] the failure of which was punishable by a fine.^[739] Additionally, the immigrant was under the obligation to inform the police of his mere intention to change abode, following which such intention would be noted on his pass.

The pass system created many difficulties for the largely illiterate workforce. The procurement of photos was expensive,^[741] and the need to apply for these passes required them to travel to the main police station of their district, which could involve a considerable distance and would in most cases inevitably require an absence from work. It has been observed that it was not unusual for labour­ers to be arrested for vagrancy (discussed next) on the way to have these passes made,^[742] thus making a mockery of the entire process.

6.4.2 Vagrancy

Regulations related to vagrancy can be traced back to the Order in Council of 7 September 1838, and were largely repeated by Ordinance No. 42 of 1844.^[743] While the order and the ordinance were primarily geared towards establish­ing vagrancy as an offence, with varying custodial sentences including hard labour for the categories of “idle and disorderly persons”,^[744] “vagabonds”^[745]

State-VegulateA immigration and, emergence of a peasantry 157 and “incorrigible rogues”,^[746] in the 1867 new labour legislation the issue of vagrancy was approached from the context of compelling the population to labour. Unlawful absence led to loss of wages and allowances for the time of such absence, in addition to forfeiture of a certain amount of the work­er’s monthly wages for each day of absence.^[747] This mechanism is frequently described by scholars as the notorious “double-cut”, by which the worker was effectively punished twice. Upon his employer’s complaint, instead of for­feiture, the labourer was liable to be sentenced to imprisonment,^[748] “or (at the option of the employer) to a prolongation of the Contract equivalent to the time of absence”.^[749] The reported case of Itoo demonstrates that where there was repeated refusal to work on prolongation, the labourer was liable for imprisonment on each refusal.^[750]

Where absence from work without justifiable cause was accompanied with absconding from his dwelling for more than three consecutive days, the labourer in question was deemed a “deserter”, and liable to imprisonment no exceeding three months,^[751] and could be lawfully apprehended by his employer or anyone acting with his employer’s authority.^[752]

Particularly harshly, an Old Immigrant, who was unable to produce his passes on demand, was liable to be detained and kept at the Immigration Depot until enquiries were made about his means to subsistence.

Article 48 of the 1867 order excessively curtailed immigrants movements, for it provided that “any Immigrant found in a District where he has no residence, or in any house or premises, and being unable to give a satisfactory reason for his being in such a District, house, or premises, as the case may be, may be arrested by any Officer or Constable of Police, without warrant”. What was considered “satisfac­tory” was not defined, and thus left the labourer liable to punishment in almost

any instance where he was not found at this place of work. These, among other instances, rendered the position of Indian labourers in Mauritius very precarious.

6.4.3 Wages

Payment of wages differed considerably among the colonies, as Governor Gor­don^[754] observed in an 1871 despatch to the Earl of Kimberley.^[755] In Jamaica and Demerara, labourers were paid weekly, in Trinidad fortnightly, and in St. Lucia payments were to be made twice a month under penalty, imprisonment or, under the governor’s discretion, cancellation of the contract. In Mauritius however, payment was due only once a month, though crucially, as Governor Gordon pointed out, a local enactment in form of Ordinance No. 15 of 1852 prevented a worker from suing for cancellation of contract on the ground of nonpayment of wages until at least three months had expired from the day the payment was due. This was confirmed 15 years later by Ordinance No. 31 of 1867, with the governor observing that “it has been lately ruled by the Supreme Court that cancellation of contract cannot be claimed under this clause unless a period of four months has elapsed since the last payment of wages.”^[756]

The reported case of Belloguet v.

a labourer obtains a Judgment against his master for wages due, the Mag­istrate is authorized to grant the master a delay, and, as in the schedule, the blank to be filled up by the Magistrate is followed by the world “months”, it is clear that a long delay is contemplated. This delay is capable of further extension with the consent of the coolie.^[758]

It is difficult to fathom under this regime how long labourers may have had been obliged to work without payment of wages. Coupled with the rules that allowed wages to be cut in a variety of circumstances as well as the instances that granted the employer a prolongation of contract in his favour, it is clear that the situation the labourers found themselves in did not, by any account, amount to an equitable service agreement. The case of Thamun v. D'Emmerz of 1861 in this context reveals an interesting aspect as to how the relationship between labourers and their employers was being conceived. It was held that upon an employer’s death, and the estate passing by inheritance, “the right to the services of the labourers engaged under written contract is transmitted to the heirs.”^[759] This, of course, is reminiscent of the situation of slaves, who under the Code Noir were inheritable as chattels.

Overall, it is evident that whatever Indian labourers may have expected from agreeing to work in Mauritius, the conditions they were faced with were harsh and difficult to bear. This is most unfortunately reflected in the high rates of sui­cides among the workers during the period in question.

6.4.4 Incidents of suicide

In 1871, newly appointed Governor Gordon expressed his concern at what he regarded an “extraordinary frequency of suicide among the Indian immigrants in this Colony”, noting that “the vast majority occur among the indentured labourers on estates.”^[760] The governor observed with dismay the inconsisten­cies between the returns of the Civil Status Office and the police records on the numbers of deaths. Yet irrespective of which set of numbers could have been considered more reliable, the governor believed “we must consider the heavier return to be the truer one”.^{[761] [762] He included the return shown in Table 6.3 with his correspondence:}

Table 6.3 Probable motives - return of suicides amongst Indian nationals 1 January 1861-31 December 1870¹³⁴

Governor Gordon stated that he did not place reliance on the classification provided, and in particular did not believe that “jealousy” was a decisive cause to any large degree. Taking into account proportional variations in the number of male and female immigrants among the Indian population over the decade, he noted that suicides were committed predominantly among men. From the current set of data, the governor observed that “the suicides are almost all those of males, only 17 suicides of women having occurred out of a total of 642”.^[763] In closing Governor Gordon made the observation that “I myself believe that a very large portion of these suicides are due to nostalgia, or an intense desire to return to India, which they have no means of gratifying.”^[764] In his reply, the Earl of Kimberley instructed the governor to establish a “system of proper inquiry into sudden deaths either by a coroner or by a magistrate” which did not exist at the time on the island, and expressed regret at the dis­crepancies between the returns of the police and the Civil Status Office respec­tively, which he felt “must be due to want of care either in the Department in question or on the part of those whose duty it is to report the occurrence of deaths on estates.”^[765]

Analyzing the numbers contained in Table 6.3, it appears striking that the smallest number of suicides is attributed to “discontent and ill-treatment”, enu­merated at only 17 out of 642, whereas the largest number, at 217, is considered to have occurred due to “unknown” causes, raising the suspicion that the cir­cumstances leading to the suicide may have well been known, but neither overse­ers nor officials were prepared to record them precisely.

6.4.5 “Unfree” labour

The above analysis demonstrates that the exploitative nature of a labour system was not solely dependent upon the legal status of the worker. An important ques­tion relates to the consequences for non-performance of contract (whether actual or fabricated), which in the case of indentured labourers in Mauritius entailed criminal penalization as punishment.

As elucidated by Ralph Shlomowitz, employers of long-term indenture workers were generally concerned with two matters: retention of the worker until the end of the contract and extraction of a satisfactory amount of labour

State-VegulateA immigration and, emergence of a peasantry 161 for the duration of the same.^[766] According to him, it was precisely the avail­ability of a criminal remedy for what would be actually a civil offence that was the most distinctive feature of indenture. Providing employers with such a level of control over their workforce is thus what differentiated this system from free labour.^[767]

It is submitted that criminal penalization is but one aspect which rendered indentured labour in Mauritius coercive. Rejecting the notion that free labour always implies non-coercion and protection of the worker, Amrit Mishra stipu­lates two indicators in particular, in addition to moral domination, which he deems as the determinants of freedom: mobility and wage payments.^[768] As noted above, vagrancy laws were employed to drastically restrict the movement of indentured labourers. Thus, any activity that was not directly work-related (such as visiting friends and relatives on other estates, going to register grievances with the protector or magistrate or seeking alternative work after the end of a con­tract) was deemed criminal. These oppressive measures were extended when it became compulsory for the labourers, through the ticketing system introduced in 1867, to carry passes at all times. Any default resulted in imprisonment, which inevitably amounted to a “double-punishment” as a result of the attending wage cut (itself quite drastic, as it involved two days wages lost for each day missed), as per Ordinance No. 22 of 1847.

On the basis of these oppressive regulations, Mishra argues that indentured labour was not free, as it denied economic independence as well as mobil­ity of occupation and place.^[769] However, given that the idea of “free labour” may encompass a number of exploitative and coercive instances it may be better understood as an “ideological construct”.^[770] Stanley Engerman seeks to resolve the inherent tensions and contradictions by drawing a distinction between “lib­erty of the person” and “liberty of contract”.^[771] Yet in the absence of available alternatives to the worker (as has been observed in the case of the labourers once they became employed on the plantations), Engerman states that “the value of legal freedom is weakened.”^[772] In Mauritius a greater semblance of freedom was achieved when resources were made available to the imported workers, most notably land.

6.5