Daily Editorial Analysis for 12th May 2020

Equal freedom and forced labour

Syllabus:  General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.

Sub-Topics: Welfare schemes for vulnerable sections of the population by the Centre and States

Context: The steps being taken by States, under the cover of COVID19, of removing labour laws are grossly unconstitutional.

Labour Rights

• Rights of labour were the main demand in the struggle for various freedom struggle.
• The 1931 Karachi Declaration and Bill of Rights, often considered a fore-runner to the Constitution-Expressly placed labour rights on a par with ordinary civil rights such as the freedom of speech and expression.
• Prominent among these was the right against forced labour, guaranteed by Article 23 of the Constitution.
• T. Shah, another member of the Constituent Assembly, famously wrote, “necessitous men are not free men”.

Struggle to have labour rights by constituent assembly:

• The Constituent Assembly of India and B.R. Ambedkar argued against a narrow understanding of freedom.
• The normal understanding of the purpose of constitutions has been to limit state power, in order to preserve the freedom of the individual
• Given the role of private parties — individuals and corporations —over the economic and social life of a nation, B.R. Ambedkar argued that fundamental rights must also consider and eliminate the possibility of the more powerful having the power to impose arbitrary restraints on the less powerful in terms of economic life of the people.

Judicial stand:

• In 1983, a petition was filed in the Supreme Court seeking its intervention to address the exploitation of migrant and contract labourers, who had been put to work in constructing the Asian Games Village in New Delhi.
• The Supreme Court in the PUDR vs. Union of India case made some important observations:

• • SC noted that often, migrant and contract labourers, under the compulsion of economic circumstance, had no real choice but to accept any work that came their way, even if the remuneration offered was less than the minimum wage.
  • The Court held that the compulsion of economic circumstance compelling a person to provide labour or service was no less a form of forced labour than any other.
• The Court held that the right against forced labour included the right to a minimum wage and insisted on a constitutional guarantee of minimum wages.

Important Labour Laws:

1. The Trade Unions Act, 1926: –

Trade unions are a very strong medium to safe the rights of the employees. These unions have the power to compel higher management to accept their reasonable demands.

Article 19(1)(c) of the Indian Constitution gives everyone the right “to form associations or unions”. The Trade Unions Act 1926, amended in 2001 and contains rules on governance and general rights of trade unions. 

2. The Payment of Wages Act 1936: –

This act ensures that workers must get wages/salaries on time and without any unauthorised deductions. Section 6 of the Wages Act 1936 says that workers must be paid in money rather than in kind.

3. Industrial Disputes Act 1947: –

This act has the provisions regarding the fair dismissal of permanent employees.
As per this law, a worker who has been employed for more than a year can only be dismissed if permission is sought from and granted by the appropriate government office/concerned authority.

A worker must be given valid reasons before dismissal. An employee of permanent job nature can only be terminated for proven misconduct or for habitual absence from the office.

4. Minimum Wages Act, 1948

This act ensures minimum wage/salary to workers of different economic sectors. State and Central governments have the power to decide wages according to the kind of work and location.

This wage may range between as much as Rs 143 to 1120/ day. This minimum wage can be different in states to states.

The average per day wage rate for unskilled work under the MGNREGA is set to rise by 11% from Rs. 182 to Rs. 202 for 2020-21.

A MGNREGA worker gets Rs 258/day in Dadra and Nagar Haveli while Rs 238 in Maharashtra and Rs 204 in West Bengal.

5. Maternity Benefits Act, 1961: –

This Act entitles maternity leave for pregnant women employees i.e. full payment despite absence from work. As per this act, female workers are entitled to a maximum of 12 weeks (84 days) of maternity leave. All the organised and un-organised offices that have more than 10 employees shall implement this act.

So, this law protects the job of the female workers during pregnancy and post-delivery. This act has been amended in 2017.

6. Sexual Harassment of Women employees at Workplace Act, 2013

This act prohibits any kind of sexual Harassment of the women workers at the workplace. This Act came into force from 9 December 2013.

Constitutional provisions:

• The strong ideals and principles of the freedom movement eventually found their way into the Indian Constitution in the form of Directive Principles of State Policy and Fundamental Rights

• • Article 23 of the Indian Constitution provides for the right against forced labour.
  • The State shall endeavour to provide the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, within the limits of economic capacity as per Article 41.
  • Article 43 says workers should have the right to a living wage and “conditions of work ensuring a decent standard of life”.
  • The State shall take steps to promote their participation in management of industrial undertakings as per Article 43A.

 “force” and “freedom”:

• Forced labour may not be only due to physical force or threat of physical harm. This constitutes a very narrow understanding of forced labour of freedom per se.
• Such an understanding ignores the compulsion that is exerted by differences of power, social or economic status. These forces are equally severe as physical force or threat of physical harm. In such circumstances, poor and vulnerable people driven by the need to earn a livelihood can be placed in positions where they have no genuine choices left.
• T. Shah, a member of the Constituent Assembly, had famously written, “necessitous men are not free men”.

COVID-19 crisis:

• Various State governments are in the process of removing labour laws (for a set period of time).
• This would lead to a situation where the economic power exercised by capital will be left unchecked. This could lead to increase in hours of work, removal of minimum wages and reduction of wages.
• The author argues that the steps being taken by various State governments in relaxing labour laws, under cover of the COVID-19 pandemic, are grossly unconstitutional.

Why Labour Reform?

• Labour reforms essentially mean taking steps in increasing production, productivity, and employment opportunities in the economy in such a manner that the interests of the workers are not compromised.
• Labour is in the concurrent list and more than 40 central laws and more than 100 state laws govern the subject.
  • India’s labour laws are archaic, too many, often contradictory, and badly administered.
  • Labour laws remain extremely complicated and there is a need to bring reform by addressing some of the issues like long-term contracts and dispute resolution.
• The codification of labour laws will remove multiplicity of definitions and authorities leading to ease of compliances without compromising wage security and social security of workers.
• It simplifies access to numerous provisions of the law by all stakeholders concerned.
• It would help in increasing women participation in labour force and address gender-biases in wages.
• It would increase job creation by streamlining labour issues and making hiring easy for industries by developing adequate means to absorb labour in the economy.

Challenges:

Market Economy:

• In a market economy, there is a marked inequality between capital and labour, more so in a country like India with pre-existing inequalities in the society.
• The inequality results in a lower bargaining power for the labourer class and enables the factory owners to “make the rules” for the labourers. The author refers to this as a form of “private government”, wherein there is unilateral term-setting in the workplace.
• The recent rise of the platform or gig economy has led to the rise of casualization and precarious employment which further limits labour unionism and deepens the inequality of power.
• There have been rapid changes in the nature of work which are rendering old concepts of jobs and employments obsolete.

Labour laws:

• Labour laws aim to mitigate the supposed imbalance of power between capital and labour.
• In India, there have been a detailed set of laws, covering different aspects of the workplace. These are enforced by the State agencies.
• India’s labour law structure has been criticised on multiple counts.
  • The labour bureaucracy as envisaged by the labour laws of India is prone to corruption.
• The adjudicatory mechanisms are inefficient. The judiciary has not been able to ensure the protection of the rights of the labour class.
• The labour laws predominantly cater to the formal workforce with very less provisions in place for the contract labour or informal employment which account for a majority of the workforce.

Way forward:

There is a need for a nuanced debate on the future of labour rights guided by B.R. Ambedkar’s insights, the constitutional guarantee against forced labour, and an understanding of force and freedom that takes into account differences in power.

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The need for a second chamber

Syllabus Linkages: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.

Sub-Topics: Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.

Context: The Rajya Sabha came into being on April 3, 1952 and held its first session on May 13 the same year. How and why Rajya sabha become the most integral part of Indian Polity?

History:

• The central legislature that came into being under the Government of India Act, 1919, was bicameral with a Council of States comprising 60 members and a Legislative Assembly comprising 145 members. The membership and voting norms for the Council of States were very restrictive.
• The Government of India Act, 1935 proposed an elaborate and improved version of the second chamber, but this never materialised.
• The Constituent Assembly, which was formed in 1947, after adoption of the Constitution, became the Provisional Parliament and made laws till 1952.
• The Rajya Sabha came into being in 1952.

Constituent Assembly debates:

• The proposal for the Rajya Sabha as a second chamber was subjected to serious argumentation in the Constituent Assembly.

Why there were so many oppositions?

Upper House was not essential and it was just a creation of imperialism in India.

The second house could stall the parliamentary process of law making and prove to be a “clog in the wheel of progress” of the nation.

• There was opposition to parity of powers in law-making for the Upper House which had only indirectly elected members as against the lower house which had representatives directly elected by the people based on universal adult suffrage.

Why Rajya Sabha is necessary?

• The second house would help check hasty legislation by allowing for a second thought on important issues.
• It would lend voice to the constituent units in the legislative scheme of things.
• It would allow intellectuals and experienced people to enter the legislature who would otherwise not be able to handle the hustle and bustle of direct elections.

Importance of Rajya Sabha:

Bicameralism:

• Bicameralism is a principle that requires the consent of two differently constituted chambers of Parliament for making or changing laws.
• The principle of bicameralism came into operation in 1787 with the adoption of the U.S. Constitution and its appeal has grown in strength over time. At present, 79 parliaments of the world (41% of the total number) are bicameral.

Checks parliamentary tyranny:

• The second chamber enables a second and reflective expression of representative opinion besides helping impede any instances of parliamentary tyranny.
• Parliament is not only a legislative body but also a deliberative one which enables the members to debate major issues of public importance and the second house has an important role as a deliberative body.
• The lower house elected directly by the people is susceptible to passions of the moment and electoral considerations. The second chamber, whose members are expected to be sober, wise and well-informed with domain knowledge, can check parliamentary tyranny.

Federalism:

• Federalism has been in vogue since ancient times when some states got together to confer the power of law-making on a central authority. But modern federalism is entirely different given the complexity of geographical, regional, social and economic diversities marking the constituent units of a federation or a union.
• India has a huge degree of diversity with each unit having its own set of unique features.
• The federal character of a nation comprising constituent units can be reflected in, and secured by a bicameral legislature.

Conclusion:

As can be gleaned from the Constituent Assembly debates and the experiences of other Parliaments, the mandate of the Rajya Sabha is to revise or delay legislation without becoming a clog in the wheel of progress; to represent the interests of the States as a federal chamber; and be a deliberative body holding high-quality debates on important issues.