In the final of a five-part series on the absence of checks and balances on the State to ensure the effective operation of labour laws, and how it led to the shameful and tragic predicament faced by thousands of migrant workers across the country during the COVID-19 induced nation-wide lockdown last year,K.R. SHYAM SUNDARconcludes his analysis by imagining a social penal system for government failures.
ACCORDING to the Internation Labour Organisation (ILO)’s Labour Administration Recommendation (R.158), 1978, a country must ensure “the organisation and effective operation of [the] labour administrative system” in its territory. The labour administrative system should coordinate its functions and responsibilities, participate actively in the preparation, application and review of labour laws and regulations, assist in improving labour relations in various ways, and implement the national employment policy, among other things. It is bound to provide periodic reports comprising suitable statistics and publish and disseminate them nationally and internationally.
The Labour Administration Convention (C.158), 1978 envisages an active role (though to be implemented gradually) for labour administration concerning the conditions of work and working life of those in the informal sector. The Recommendation regards labour inspection as a component of labour administration.
The Labour Inspection Convention (C.081), 1947, which India ratified in 1949 envisages a vital role for inspectors “to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours, wages, safety, health and welfare, the employment of children and young persons …”.
All the ILO instruments require governments to consult with employers’ and workers’ organisations, and in the case of labour administration and labour inspection, even envisage a role for the latter.
Domestic framework in India
Thus, we see that the ILO’s labour standards framework conceives an elaborate system of labour administration (widely defined) and labour statistical system. On the other hand, the Constitution of India assures several fundamental rights like equality before law, prohibition of discrimination on the basis of place of birth, among others, freedom of association, protection of life and personal liberty as fundamental rights.
More crucially, Part IV, the chapter on Directive Principles of State Policy, extends the legal and the normative framework elaborately to address many issues concerning labour welfare and rights. The executive, legislature, judiciary, and the public (and labour) administration are the institutions vested with the powers and responsibilities to do everything possible under the overarching constitutional framework of India and in line with the international treaties.
Thus, we see that the ruling government, the judiciary, the administrative agencies and even the opposition, in a democratic and pluralistic society, have crucial, legal and normative powers and responsibilities to promote social and labour welfare.
But the detailed analyses in part 1, part 2, part 3 and part 4 of this series clearly establish the fact that the political executive belonging to various political parties, the labour administration and the inspectorate have miserably failed to deliver what they are legally mandated to. Strictures passed by the Supreme Court did not have much effect on them either. Even the E-Shram portal that the National Democratic Alliance (NDA) government unveiled on August 26, 2021 – and takes pride in, with no scruples whatsoever – was initiated by it only after several nudges by the Supreme Court.
Completing mere registrations has become a gigantic task, and the Government has no gestation date, which shows a lack of institutional and administrative vision. But for the COVID-19 pandemic, the marginalised millions of workers would have continued to suffer.
Both the United Progressive Alliance (UPA-I & UPA-II) and the NDA governments have completely ignored the welfare of the millions of informal workers in the country. Most state governments have failed to act according to their responsibilities under the respective labour laws.
For every act of violation, people and institutions under various statutes pay the penalty, including sometimes through imprisonment. But it is a matter of irony, and even moral and legal neglect, that the ruling parties under the Constitution and the labour administrative officials, who have a mandate to perform their functions as per the laws, are not punished.
At times, as in the case of the BOCWs and the ISMWs, they simply refused to act, despite strictures passed by the highest judicial body in India.
The ruling parties fail primarily in two ways – first, to conceive of suitable and adequate statutes and regulations to ensure social and labour welfare, and second, to ensure efficient functioning of the labour administration by efficient and holistic implementation of laws and regulations so enacted or issued. The opposition parties are partners in crime too, as they often become the ruling parties and fail in the same manner as the current ruling parties. The labels, save for some parties, are in a perpetual flux.
The argument that the periodical elections would punish the ruling parties erring on social welfare and other aspects does not hold good in India as rarely are elections fought on economic and labour policy issues in India. This is mainly attributable to two reasons – first, we do not have a Labour Party, unlike in the UK or Australia. Of course, the Communist parties exist but they are lamentably and incurably divided.
People fail, though justifiably, to understand why the Communist parties are divided when most of them in the electoral spaces have accepted to function in the pluralistic democratic system even though they are fundamentally opposed to the capitalistic system. Ideological fine points or the origin of control do not interest them.
Second, social and purely political issues dominate India’s electoral strategies and discourse, though economic issues have begun to acquire prominence in recent years.
What should be done to require the State and its agencies to be as compliant as they expect citizens and private institutions, including firms, to be?
As a preliminary thought, I advocate that the ruling party (parties) must pay, from solely their party’s funds, a certain sum which would be estimated and computed by suitable authorities like the Comptroller and Auditor General of India (CAG), or a competent body established by the High Courts in their jurisdiction and the Supreme Court in case of national issues.
In fact, this will convert the illegal money in possession of the political parties to legal money, and can be used for constructive purposes. The Central Government has been using fiscal and other policies which hurt the interests and welfare of marginalised people – for example, the higher taxes on fuel are legitimised to fund the infrastructure and other projects which would eventually promote growth and employment. The fiscal deficit is sought to be cured, even if inadequately, through disinvestment and monetisation of public assets, and these have received strong criticism.
The central and the state governments must create a separate Compensatory Labour Fund (CLF) which would be governed by an Expert Committee, comprising members of the principal stakeholders related to the labour laws violated/non-implemented, labour economists, actuary experts, chartered accountants, and distinguished advocates, among others.
These committees must be formed under the active supervision of the High Courts (in their jurisdictions) and the Supreme Court at the national level. The composition, tenure, functions and responsibilities of the Committee could be worked out as the idea accumulates currency.
The CLF must be dispersed to the eligible beneficiaries suitably, or it could be used for social assistance to informal workers. The fiscal needs (revenue) will be funded by this unique source rather than welfare attenuating privatisation and monetisation policies which would, in fact, eventually hurt social welfare. These policies, pursued by both the UPA and the NDA governments, are myopic in nature as they seek to cure the fiscal deficit alone.
A part of the CLF could be used to strengthen the labour laws enforcement system through suitable disseminations, campaigns, and so on.
What kind of penal system could be designed to punish the erring bureaucrats? It is instructive to note that the bureaucracy does not enjoy either independence from the political class, and is not provided with simple or super infrastructure necessary to deal with the ever-increasing working population. Often, it is tasked with multiple responsibilities like election duty.
However, a bureaucracy delinked from the polity is something that is both desirable and necessary. In fact, there is no such thing as national labour statistics in India or regional statistics, as noted earlier.
There exist internal mechanisms to punish erring officials after due process of law. However, if the bureaucracy as a system fails, then the society has to take cognizance of this aspect of governance failure. Suitable punitive measures must be designed and if the checks and balances exist and there is a monitoring body comprising eminent citizens, trade unions and employers’ representatives and judges, then during their services, the erring officials can be punished.
Along the lines of the Right to Information Act, 2005, we could have in place a law on the Right to Rightful Governance which could embody the aforementioned principles in legal form. One wonders whether such a Bill would even stand a chance to be passed?
In a fair and efficient democratic society, the State must ensure checks and balances. A social movement must be in place demanding this. About 500 million of our one billion-plus population are workers – that is a significant number. Trade unions must act as a vanguard of this vast workforce.
The trade unions have also unpardonably faltered. They crowd primarily in the limited and declining organised sector and create inter-union and intra-union rivalries. As their historical base of organised sector weakened, they have slowly begun to organise the unorganised workers.
Their oft-repeated assertion that the unorganised sector workers comprise a significant share of their total membership since 2000 does not hold water for two reasons – first, as the organised sector workers’ numbers decline, the unorganised workers’ numbers would naturally increase.
Second, even a generous estimate of union coverage of the total workforce would not exceed 25% – the claimed total membership of the major central trade unions was said to be 90-100 million which, if audited, would be much less than they are, so the surplus could be taken to be members of other trade unions. Assuming 457.5 million workers as the total workforce in 2004-05, we get union coverage of 21.86%, which could be a generous estimate.
To be fair, trade unions did raise the issues concerning non-implementation of labour laws in the tripartite Indian Labour Conference in 2007, and also included it in their struggle agenda. But trade unions should have pitched the demands concerning these critical issues much more strikingly and persistently, maybe even as their sole mandate, to justify their social inclusiveness.
For example, they should have gone on country-wide struggles on major and hitherto ignored issues like the right to safe workplaces, minimum wages, non-issuance of portable and smart ID cards to the informal workers, which would have enjoyed public legitimacy. The governments would have had to take some concrete action in these matters which would have ensured universal labour welfare.
The political parties which were or are guilty of poor or non-implementation at the regional and/or the national levels lack moral legitimacy.
But more importantly, these did not figure in their protest agenda even as political parties compete in displaying, even flaunting, their pro-labour image. While I am aware of the lack of accommodative policies of the governments in the neo-liberal times, that makes their tasks more important and to an extent, even necessary.
The political class collectively owes an apology to the millions of informal workers for their multiple failures and for not fulfilling their fundamental duty of translating even the frugal labour welfare laws into reality. The labour administrators, as a class, must at least remorse and act with dignity and purpose as being engaged in vital public services.
Trade unions must wage ceaseless battles at all fronts (including legal, which they have been, not without reasons, avoiding) in a focused manner as they not only constitute an important and primary monitoring agency of labour welfare, but also in a larger sense, the vanguard of the working class. Of the institutions of the State, the judiciary offers a beacon of hope notwithstanding the criticisms it has received during the COVID-19 pandemic in particular, and in the post-reform periodin general.
This article series is an updated version of an earlier article by the author published by Newsclick last year. It has been published as a chapter in a book written by the author titled ‘Impact of COVID-19, Reforms and Poor Governance on Labour Rights in India’ (Synergy Books India, 2021).
(Dr K. R. Shyam Sundar is Professor, HRM Area, XLRI, Xavier School of Management, Jamshedpur. The views expressed are personal.)