Introduction
The autumn of 2020 in post-colonial
India was marked by the introduction of several labor reforms by the current
Modi Government at the union level. Whilst the premise of introducing these
laws in the public domain was based on welfare and improvement of working
conditions for millions of Indian workers who were otherwise as stated by the
government on multiple occasions; ridden with a “complex labor legislative
framework”, in a rather unfortunate turn of events these laws would on the
contrary - further push the perpetuating neoliberal model of the state which is
grossly anti-working class. This research in particular attempts to judiciously
opine and establish why the labor codes has faced its fair share of criticism
from all respects; particularly labor organizations and unions and how the
implementation of these rights will lead to workers losing some of their most
crucial rights. This analysis seeks to also prudently point out an adverse
observation; Indian labor legislation has consistently and only prioritized the
State’s capitalist agenda over public welfare.
Historical
Background of Labor Legislation: India
Pre-independence:
India is a common-law land wherein
in the colonial era; all legal obligations, rules and regulations between
employers and workers were categorized under a “master-servant” based
contractual nature of law. There were several instances to point out how
violating these regulations were; a simple breach of contract invited criminal
sanctions against Indian workers which shaped the narrative and voice of the
British regime; the one ridden with profit maximization and not public welfare.
However, the period of post-WWI
witnessed a period of deeply rooted social tensions that were ridden with labor
tensions and aggravating wartime inflation. This was marked by stark industrial
unrest and an unprecedented need for more production which implied that
legislators and employers couldn’t be explicitly ignorant to workers’
conditions anymore. One such instance of a progressive development per se in
labor rights was the establishment of the International Labor Organization post
the Treaty of Versailles in 1919.
Post-independence:
India was independent yet the labor
legislative framework was still mirroring the rules under the governance of the
British Crown. For instance, the
model of ‘juridification’ was adopted in postcolonial India; specifically
in the ambit of labor welfare under the introduction of Industrial Disputes Act
of 1947, trade unions were relegated to a weak role on account of the Trade
Unions Act of 1926. As a result of these collective factors; processes and
non-negotiable tools of labor welfare i.e. union empowerment and collective
bargaining - took a severe and adverse hit.
Critical
Analysis of the Labor Codes
1.
CODE ON WAGES, 2019
The code affects a workers’ salary
and ability to hold their respective employer/(s) accountable per se. This code
in particular indeed defines terms such as “employee” and “worker” on the face
of it yet a further analysis clearly suggests and establishes that the terms
keep conflating in order to create a stark confusion with respect to the rights
attributed to both of the stated roles.
Another pertinent thing to observe
is that the definition of ‘wages’ in
accordance to the act as stated verbatim in the act, “wage shall mean to include all remuneration whether by way of
salaries, allowances or otherwise, expressed in terms of money or capable of
being so expressed which would, if the terms of employment, express or implied,
were fulfilled”. This definition of wages in particular commits an
abhorrent mistake of excluding overtime, holiday wages and paid leave. The code
also adversely contributes to blatant centralization of powers since there is
no defined concept of minimum wage and the code provides for a committee to
determine the same yet it must be kept in mind that this committee would be
inclusive of only more government representation and not of employers and
employees - any and all recommendations that would be made would not be binding
over the government. Some might argue that instead of minimum wage - the code
states a term titled ‘floor wage’. Yet, floor wages can be unjustifiably low
and might be plausibly excluding any input from employees or even employers and
can effectively replace the minimum wage required for workers’ sustenance.
This code also includes the proposal
of renaming ‘inspectors’ as ‘facilitators’ and allows for web-based inspection; which would require the consent of the
appropriate government authority before inspection which entirely removes the
element of surprise regarding due and effective enforcement entirely. This
leaves workers with absolutely no recourse to ensure that their employer
follows the due procedure of law.
2.
INDUSTRIAL RELATIONS CODE, 2020
The IR code in particular
essentially harms a workers’ rights to unionize; the concept of collective
bargaining would suffer a massive blow. From registration of trade unions to
choosing trade union leaders; this code makes these essential and
non-negotiable rights almost impossible through an unbridled web of
red-tapeism.
Strikes are the most important
instrument of radical labor rights. An extremely shocking development which
this code sought to establish is the provision of providing a mandatory notice
that is to be given to employers by the workers before going on a strike. This
is in its utmost sense; undemocratic and not in alignment with worker rights
and solidarity since it makes it easier for the government to quash any dissent
by imposing heavy fines, denoting any strike as ‘illegal’ and even imprisonment
on workers who go on these ‘illegal’ strikes according to the government.
Another regressive addition to this
code is that almost any and each employee in the private sector will have no
legal protection against mass firings. Under the previous law, employers who
employed more than 100 workers required prior government approval for mass
layoffs/retrenchments in order to ensure that malafide mass firings did not
take place - yet under this code the limit of threshold has been raised of
prior approval to 300 workers.
3.
CODE ON SOCIAL SECURITY, 2020
Running in a blatantly contrasting
fashion with respect to opposing its very title; the code on social security
creates barriers in access to social security in reality. The benefits of
social security apply to only establishments above a certain size and number;
workers have to register themselves in order to avail said benefits; workers
need to provide a proof of identification; in particular an Aadhaar card to
avail the benefits. Anyone who does not have an Aadhaar card or does not want
to provide theirs on account of privacy concerns most likely is arbitrarily
excluded. The code directly excludes many categories of workers by not
mentioning them at all, such as scheme workers like ASHA workers, part time
workers, and agricultural laborers. Zero actual schemes for funding social
security to these new categories of workers in the code have been devised. The
code does not mandate the central government to make any financial contribution
towards social security in the country; thereby creating absolutely no
obligation over the government to fulfill its duties towards workers.
4. OCCUPATIONAL SAFETY, HEALTH
& WORKING CONDITIONS CODE, 2020
The code in question here adversely affects a workers’
safety at their workplace, overtime work and the right to food and rest at
work. The code weakens all available rights of contract workers, including the
right to equal pay and benefits as a category under permanent workers. It must
be prudently noted that about 70% workers in the private sector and about 50%
workers in the public sector are contract workers. These workers per se will;
in case the code is implemented - have no absolute and defined recourse to
legal protection. These unfortunate set of workers also includes migrant
workers, who suffered gross injustice in the first lock-down and clearly seek more
and better legal protection.
The code has also fed into bourgeois notion of working and
gave into exploitation of workers by removing earlier limits on overtime work,
i.e. work beyond a period of 12 hours a day and in addition to this, the code
now also allows the appropriate government authority to allow work beyond six
days a week on its own whims and fancies.
In an egregious chain of functioning, the government has
designated itself the power to prescribe all safety standards for all sorts of
workplaces by repealing all specific and previous legal safety requirements. Under
this, establishments with less than 500 workers are not even required to have
an ambulance readily available for use; canteens are required only in
establishments with 100 or more workers; lunch and rest rooms are required only
with 50 or more workers. Evidently, the basic rights of workers in small
enterprises; concerning medical attention, food and rest, have been trampled.
Conclusion
“Save
the people and save the nation”, has been the main slogan of strikes across the subcontinent
in active resistance against the retrograde labor codes to be implemented. This
year in itself, the Central Trade Unions (CITU) issued a call for a nationwide
general strike in February; particularly during the budget session of the
parliament. A join statement; to denounce the Modi-led governments’ hasty move
designed to impose slavery on workers - that was issued verbatim by CITU read
the following, “dates of nationwide
strike are finalized as…..,against
the anti-people, anti-worker and
anti-national destructive policies of the BJP Government at the centre.”
A
call for an active and radical resistance; to the erosion of hard-won rights
and needs for workers, requires to be strong, articulate and fearless.
This
blog is authored by Akshiti Chauhan, student of Army Institute of Law, Mohali
ENDNOTE CITATIONS
In
due course of my diligent research, I’ve referred to the following resources in
order to get a profound sense of the topic at hand: -
1.
https://docs.google.com/document/d/1a0Az2fqaJBZ8grcMKzDdvLTffItivmjiZ0m
-0ibqyp8/edit#
2.
https://www.gilderlehrman.org/history-resources/teaching-resource/historical-context-post-world-war-i-labor-tensions
3.
https://medium.com/tech-people/new-labour-codes-explained-48a4679d4a29
4. CITU
PRESS STATEMENT: http://citucentre.org/551-citu-denounces-bjp-govt-s-hasty-move-of-so-called-labour-law-reforms-designed-to-impose-slavery-on-workers
5. Kharbanda
& Kharbanda’s New INDUSTRIAL & LABOR CODES: textbook by Law Publishing
House (2021)
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