Lakshmidhar Mishra. Social Change. Volume 42, Issue 3, October 2012.
What is labour? What is the history of labour rights–global and national? What are the lessons we ought to have learnt from that history? What are the ground realities in the wake of the LPG (Liberalisation, Privatisation, Globalisation) syndrome and how do we contend with them? What should be the vision and prescription for the deliverance and survival of our mute millions? These and few other searching questions are bound to agitate our minds as we proceed further.
Labour, as Frederick Engels has written lucidly and forcefully more than a century ago,
is the source of all wealth, the political economists assert. And it really is the source— next to nature, which supplies it with the material that it converts into wealth. But it is even infinitely more than this. It is the prime basic condition for all human existence, and this to such an extent that, in a sense, we have to say that labour created man himself.
The right to freedom has always been regarded as a natural right and any act which has been contrary to human dignity and freedom has always been condemned. World history has reflected a number of glittering instances of resistance through the process of revolution whenever this ideal and inherent virtue of human beings was subverted by authoritarianism, says Will Moore Kendall in International Encyclopedia of Social Sciences.
‘What is fundamental right to freedom if it is not a reaffirmation of man’s natural rights,’ said Justice Shri Subba Rao, Former Chief Justice of India in Golaknath vs State of Punjab (AIR 1967 SC 1643).
In the film Amistad, Sir Anthony Hopkins, who plays the role of Adams, ex-President, USA, a brilliant attorney and the son of ex-President, John Adams, argues before the full bench of USA Supreme Court in searing and eloquent words: ‘The natural State of Man is freedom. And the proof is the extent to which a man, woman or child will go to regain it, once taken. He will break loose his chains. He will decimate his enemies. He will try and try against all odds, all prejudices to get home.’
Historical Backdrop of Labour Rights
I start with the birth of a new school of thought called socialism in 1830 with which the efforts of Robert Owen in UK and St Simon and Fourier in France are associated and with which the birth of democratic ideas, forces and institutions and the spirit of working class unity and solidarity are inextricably intertwined. They condemned the aggressively competitive individualism, a mercenary and acquisitive outlook and soullessness of the system of industrial production ushered in by the Industrial Revolution. They represented the dignity, equality and freedom of workers as human beings and as workers. Cutting across political boundaries, they advocated a new social order resting on equality, equity and social justice.
Workers’ International was formed by skilled artisans and workers between 1825 and 1832.
In 1838, William Lovette, leader of Workingmen’s Association of London issued an appeal to the working classes of Europe. I quote: ‘Fellow producers of wealth, seeing that our oppressors are united, why should we not unite in our zeal to show the injustice of war, the cruelty of despotism and the misery it entails on our species.’
He was a seer who visualised a century ahead the formation of an international trade union organisation. That led to the birth of Chartist movement.
Between 1840 and 1847 a whole labour philosophy based on unity and solidarity of the working class, evolution of labour laws and institutions, which will be protective and anti-exploitative, was spearheaded by Karl Marx, Frederick Engels, Michael Bakunin, Fesna Tristan, William Lovette, Augusta Blangri, Daniel Le Grand et al.
Birth of the First International
The First International (1864–71) opened up a channel of Communication between workers’ organisations in different countries. The Second International (1872–89) was the most cohesive international labour body with 12 million followers belonging to 27 socialist parties in 22 different countries. Over a period of time, as ideological differences deepened, it witnessed a lot of bickering between Marxian Socialists, the Bakuninists and Fabian Socialists.
Birth of International Labour Day
The idea of May Day or International Labour Day on 1 May, 1886 was born on the strength of a relentless struggle of the working class for reducing the hours of work to 8 per day and 48 per week.
To recall briefly the history of that struggle, on 1 May, 1886 the American Federation of Labour declared a national strike to demand an eight-hour work day. An estimated 3,50,000 workers across the country responded. The city of Chicago was virtually paralysed. Rail, roads, stockyards and other businesses were forced to close. Two days later, the police fired randomly into crowds of fleeing strikers, killing four and wounding more. Angry workers began to call for armed retaliation.
The next day when the police attempted to disperse a peaceful rally in Haymarket square, a bomb was tossed into their midst, wounding nearly seventy police officers, some mortally. In the retaliatory fire, the police randomly wounded over 200 people, killing an inestimable number. With no clue as to the source of the bomb, police arrested eight revolutionary labour leaders, seven of whom had not even been present in the Haymarket at the relevant time. In the absence of any evidence linking them to the bomb ‘the Chicago eight’ were tried solely on the basis of their political beliefs. All eight were sentenced to death, most were eventually executed.
News of the trial electrified labour groups everywhere. Protests were held around the world. In 1889, the Socialist International declared 1 May as a day of demonstrations. Since 1890, these have been held annually worldwide by a variety of labour groups, in many cases eventually forcing official recognition of the holiday. In 1889, exactly 100 years after the French Revolution, a congress of world socialist parties held in Paris voted to support the United States Labour movement’s demand for an eight-hour work day and they chose 1 May, 1890 as a day of demonstration in favour of this demand. Since then, 1 May, has been observed as Labour Day across the world. It is a powerful symbol of a historical struggle for freedom and democracy.
Birth of the Third International
The Third International was formed in March, 1919 as a protest against reformist political socialism. It established a new trend characterised by violent revolution and establishment of a proletarian dictatorship.
Between the Second and the Third International, a number of international splinter groups of workers came into being such as the International Federation of Trade Unions, Labour and Socialist International, International Federation of Working Peoples’ Association, International Federation of Christian Trade Unions, World Federation of Trade Unions, International Confederation of Trade Unions et al.
Birth of ILO
ILO was born in 1919 with the following as the cornerstone of its central philosophy—that universal and lasting peace can be established only if it is based on social justice; social justice rested on regulation of hours of work; prevention of unemployment and under employment; provision of an adequate need-based living wage; social security benefits; equal pay for equal work without any discrimination on the basis of caste, sex, community, faith and belief and freedom of association and expression.
Philadelphia Declaration—Hallmark of Labour Rights, Characterised by Recognition of Its Dignity, Freedom and Justice
Twenty-sixth session of the International Labour Conference held in June, 1944, adopted the Declaration of Philadelphia which opens with a reaffirmation of the fundamental principles on which ILO is based and in particular—labour is not a commodity; freedom of expression and association are essential to sustained progress and Poverty anywhere constitutes a danger to prosperity everywhere.
The Declaration further reaffirms: ‘All human beings, irrespective of race, creed or sex have to pursue both their material well being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.’
Watershed between the Old and New Millennium
More than eight decades have passed since the Philadelphia Declaration. Where are we today? We are today at the crossroads of history. The new millennium has bidden adieu to the old, heralding a new dawn. The old millennium witnessed a number of striking events of history—the dissolution of the Soviet Union, the end of the cold war, the end of apartheid or racial discrimination, and dismantling of the Berlin Wall. It also witnessed an end to tyranny and dictatorship in many countries and return to the fold of democracy and republicanism in many others.
The corridors of history of the old millennium have, however, been splashed with the blood of mass genocide, armed insurgency, civil strife, mindless communal and ethnic hatred and violence resulting in massacre of millions of innocent women, children and men. Millions of innocent children perished before they could blossom to the flower of youth and manhood.
The dignity and beauty of human life have been subsumed in blind pursuit of power and pelf. The finest of human values and principles have been thrown to winds in the internecine struggle for supremacy of one over another. This is what had provoked Mr. Kofi Anan, the former UN Secretary General to deplore at the dawn of the new millennium, ‘the 20th Century has been the bloodiest one ever in human history and human memory.’
Was Mr Anan being brutally candid or he said this in desperation?
Today there is no dearth of refreshing clichés likes replacement of ‘inward looking’ by ‘outward looking’, ‘exclusiveness’ by ‘inclusiveness’, technological obsolescence’ by ‘technological innovation and revolution’. Despite all the talk of inclusiveness, there are twenty-seven million slaves in the world today, more than a hundred million children in the most tender, formative and impressionable stage of human development have been pushed to the most arduous and hazardous occupations, over one billion people live below the poverty line, nearly 850 million go to bed hungry every night and 1.2 million people die annually of 250 million work-related accidents and diseases. Additionally, nearly 160 million workers are victims of occupational diseases.
As unprecedented or extraordinary are the opportunities for acquisition of wealth, so are the frightening inequalities in wages and income. These are growing in astronomical proportions. As Prof. Amartya Sen has so lucidly expressed: ‘The process of economic liberalisation is seen as a terrorising prospect by many precariously placed individuals and communities.’ Juan Somavia, the outgoing DG ILO, aptly summed up the scenario at the 87th session of the international labour conference in the following words:
Policies of economic liberalisation have altered the relationship between the State, labour and business. Economic outcomes are now influenced more by market forces than by mediation through social actors, legal norms or state intervention. International Capital markets have moved out of alignment with national labour markets creating asymmetrical risks and benefits for capital and labour. There is a feeling that real economy and financial systems have lost touch with each other.
Dr G.H. Bundland, former Prime Minister of Norway, former Chairman of the World Commission on Environment and Development and former DG, WHO observed with a lot of anguish after visiting a hospital ward for HIV infected children in Durban, South Africa:
Watching these dying children is a memory that will last. About billion people today live on less than 2 dollars a day. It means that half of the global population is not even close to a decent standard of living. More than a billion people do not have enough to eat every day. We are facing this alarming situation today largely on account of an outdated and lopsided approach to development. Our theories have to catch up with what our ears & eyes are telling us and fast.
Feudalism: Meaning, Content and Forms
Michael Kalecky, a distinguished economist on his return to Poland after the Second World War had remarked: ‘We have effectively contained capitalism but are still grappling with feudalism.’
There is a symbiotic but nevertheless perverse relationship between imperialism, colonialism, capitalism and feudalism. This relationship manifests itself in numerous forms of exploitation and un-freedom. Most countries in the Asia Pacific region have been victims of all these exploitative systems and their associated forms.
To revert to feudalism, it is essentially a relationship between an enslaved peasantry which is obliged to part with economic surplus and a class of rack renting absentee landlords who monopolise control over land and other natural resources.
To illustrate from the Indian experience, in the beginning of the colonial era large estates of the local gentry in the eighteenth century were cultivated by labourers in hereditary servitude belonging to people in the lower strata of the society who were forbidden to hold land, forbidden to study scriptures and forbidden to mingle with the mainstream society with freedom and dignity.
Indentured Labour their Plight and Predicament
The economically worse off Indian labourers migrated to other parts of the British Empire, that is, South Africa, Mauritius, West Indies, Trinidad and Tabago and Fijji under the indentured system of labour recruitment.
The plight and predicament of such indentured labourers could not have been more poignantly narrated by anyone other than V.S. Naipal, the distinguished Nobel Laureate for Literature (2001) from Trinidad and Tobago in his noted work A House for Mr. Biswas. To quote from that seminal work:
Mr Biswas grew. The limbs that had been massaged and oiled twice a day now remained dusty, muddy and unwashed for days. The malnutrition that had given him the sixth finger of misfortune pursued him now with eczema and sores that swelled and burst, scabbed and burst again until they stank. His ankles and knees, wrists and elbows were in particular afflicted and the sores left marks like vaccination scars. Malnutrition gave him shallowest of chests, the thinnest of limbs. It stunted his growth and gave him a soft rising belly. He was never aware of being hungry. It never bothered him that he did not go to school.
There were many other disastrous consequences of colonialism and feudalism such as free import of manufactured goods, heavy revenue burden, rigid collection in cash, application of the laws of distraint of property, imprisonment of defaulting debtors, massive displacement of artisans, their getting de-skilled and converting to the status of landless agricultural labourers and lowering of the land man ratio, replacement of the traditional forms of servitude characterised by patron-client relationship in the words of Jan Bremen, noted social anthropologist by monetised forms of debt bondage.
Slavery was legally abolished in 1843 but continued in diverse forms in different parts of the British Empire.
Rural Poverty—Causes and Contributory Factors
The genesis of rural poverty in India dates back to the latter half of the Eighteenth Century (1793 to be precise) when the zamindary system was introduced by the colonial rulers through the Bengal Permanent Settlement Regulation, 1802 converting millions of peasants to tenants and subjecting them to all types of oppressive treatment by the feudal landlords. Rackrenting, absentee landlordism and rural poverty were the direct outcomes of the pernicious zamindary system. It rendered millions of artisans and craftsmen, spinners, weavers, potters, carpenters, cobblers and blacksmiths jobless and reduced them to the status of landless agricultural labourers.
Although a move was made as early as 1830 for abolition of the zamindary system, it is only 127 years later, that is, in 1957 that elimination of this primitive, unethical and tyrannical system became a historical reality. In the wake of abolition of the system, the tiller was enacted to become the owner and ownership rights were conferred on millions of cultivating tenants. This measure received a boost with a number of other progressive measures such as imposition of ceiling on landholding, distribution of surplus land to the landless, measures to deal with the problem of rural indebtedness, abolition of bonded labour system but the scars of nearly one and half centuries of rackrenting, absentee landlordism, eviction of the tiller from the soil, the unethical oral and informal tenancy system (except Kerala where it stands fully abolished) are visible even today in the countryside.
Concept of Development
What is development? Is it to be measured by the length of roads, bridges, culverts, flyovers, primary health centres, school and college buildings, skyscrapers, satellite communication, transmission towers, hydroelectric projects, thermal stations, golf courses, gymnasiums, malls, retail outlets, EPZs and SEZs? These, no doubt, represent forms of physical and infrastructural development and may be necessary up to a point to meet the basic human needs of health, education, food, water, energy, transport and communication.
True development, however, is something beyond and far more fundamental. True development is development of human spirit in a climate of undiluted freedom and dignity.
True development is release from the shackles and fetters of bondage to the joy of freedom what the noted Marathi poet Ajit Siralkar has so lucidly and soulfully described:
The sweetest and best of all symphonies
Is not the song of Mehfils
Nor the murmur of stream flowing from the hills and into the sea
Nor the plaint of the cuckoo
It is the sound of laughter
Anywhere, of everyone
It is the sound of the fetters breaking
There is a positive and negative correlation between development and freedom. Human beings, if treated with dignity, decency, equality and freedom would be inspired and motivated to contribute their very best to whatever they do at home, at the workplace, in their profession and calling and anything creative and innovative. The best of imagination, ingenuity, creativity and resourcefulness of individuals would be unleashed.
Negatively speaking, loss of freedom would lead to many other undesirable consequences such as poverty, hunger and malnutrition, lack of public facility and social care centring round literacy, education, health, medical care, potable water, hygiene, environmental sanitation, shelter and so on.
Prof. Amartya Sen in his book, Development as freedom (Sen 1999), has come to the following conclusions:
Freedom is both the primary end of development; it is also among its principal means. Political freedom helps to promote economic security. Social opportunities, in the form of education and health facilities, facilitate economic participation. Economic facilities (in the form of opportunities for participation in trade and commerce) will help to generate personal security; they will also generate public resources for social facilities. Loss of social or political freedom would lead to loss of economic freedom.
In a similar vein, Justice Shri P.N. Bhagwati, former Chief Justice of India while addressing a national seminar on organizing the unorganised rural labour on 1 January, 1984, at the Viswa Yuvak Kendra, New Delhi, had observed:
The problems which the rural labour faces in India today are symptomatic of a feudal, traditional, status oriented, inegalitarian and economically backward society marked by intolerable social and economic inequalities. Our Constitution proclaims equality before the law but to the large millions of our people, equality before the law has remained merely a myth or an illusion. There can be no real equality before law unless it is based on social & economic equality.
Importance of Freedom of Expression, Association and Collective Bargaining
Viewed in this perspective, right to freedom of expression, association and collective bargaining as guaranteed by ILO Convention No. 87 and 98 and Art. 19 of the Constitution of India are not anti-trade, anti-growth and anti-development. The principles underlying them are unexceptionable and they are intended to yield certain tangible gains.
They will provide the basis for building the representational security needed to meet contemporary challenges and avail of facilities and opportunities arising out of globalisation. Besides, partnership between representatives of workers and managements will unlock the firm’s potential for innovation, adaptability, flexibility and productivity. They will also provide an indisputable mechanism through which women and men at work can ventilate their grievances, contribute the best of their imagination, ingenuity, creativity and resourcefulness to the prosperity of the enterprise and growth of the national economy and simultaneously claim their share of the fruits of globalisation.
Impact of Globalisation on the Right to Freedom of Association and Collective Bargaining
How has globalisation impacted the exercise of the right to freedom of association and collective bargaining?
In today’s globalised environment, capital has acquired the dubious option to exit while MNCs are key players in many parts of the globe, directly or indirectly. Since multiple exit options are available to mobile capital there is every possibility of transfer of an enterprise from one country to another. Such transfer has serious consequences mostly by way of unforeseen dislocation for labour. The terms and conditions of transfer are unknown to them and they will be mostly at the receiving end by such transfers.
Equally adverse are the consequences of transfer of technology. There are two attendant limitations of this process. The first flows from limited access to technical knowhow and problems of adaptation of the technology under indigenous conditions. The second involves occupational risks and hazards inherent in the technology which is being imported from abroad. These are not made known to the workers. There is no communication or risk-sharing along with technology transfer. When something goes wrong with the technology resulting in a major accident or disaster, workmen are taken totally unawares. They eventually pay a heavy price in terms of loss of life and limb (example: the disaster which struck Union Carbide Corporation of India’s plant at Bhopal on 2 December, 1984, killing 2,500 people instantaneously while injuring, maiming and crippling many others).
Right to freedom of association and collective bargaining receives a jolt on account of large scale mergers, acquisitions as also liquidation of companies which have been rendered sick, unviable and unrevivable. Employees’ representatives at the bargaining table will be handicapped on account of lack of access to information about the factors which have caused sickness over which they have no control. Whether it is merger or acquisition or liquidation the workers eventually are the worst sufferers. There is no outlet for them where their voice can be heard for some relief.
In the context of restructuring of production process, changes in work patterns and employment relations, there is a significant decline in the number of regular employees and perceptible increase in the number of contract/casual employees. They are the worst victims of non-standard or atypical forms of employment.
Visible consequences of these policies are lack of stability and durability of employment, non-payment of statutorily notified minimum wages, illegal deduction from whatever wages are paid towards payment of middlemens’ commission, little or no attention paid to occupational health and safety, non-payment of workmens’ compensation, non-deposit of EPF (Employees’ Provident Fund) and ESI contribution even after deduction of the same form workers’ wages and siphoning off the same elsewhere which amounts to criminal breach of trust and evasion and circumvention of accountability/liability arising out of law.
Globally there are nearly 1,000 free trade export processing zones in which there are severe restrictions on exercise of the right to freedom of association. There are several reasons for a ban on bona fide trade union activities on the part of employees in EPZ units. Important among them are the urge for quick execution of jobs at competitive prices and the perceived need for exercise of greater control on the part of EPZ managers in determining workplace norms and conditions which are geared to such quick execution at competitive prices. Many of these zones are either exempt from application of labour laws or have the entry of officers of labour law enforcement machinery as also trade unions barred.
Empirical studies are a pointer to the trends which are a negation of inalienable trade union rights. There has been an unabashed political control of trade unions coupled with delayed registration or altogether refusal of registration of trade unions by the Registrar on some plea or the other. Exclusion of certain categories of workers/employees from purview of TU laws, restrictions on federation activities and international affiliation, acts of anti-union discrimination, excessive regulation, control and interference in the legitimate internal affairs of a trade union are among the trends that signify negation of trade union rights.
Right to freedom of association and collective bargaining is the very basis of social cohesion, social dialogue and social protection. Representation precedes social dialogue. The common route to representation and dialogue is through trade union organisation. Respect for freedom of association provides the foundation for the much needed representational and emotional security apart from being vital tools for conflict resolution and conflict management.
Exercise of this right is an important form of protection of other rights of workers such as right to a living wage, right to occupational health, safety and welfare and right to social security.
Organisations of women and men also provide a countervailing force to fight against tyranny, oppression, injustice, discrimination and exploitation. They open up new frontiers of development which are self-propelled and self-driven.
Such protection is relevant for all categories of workers, that is, regular, contract, casual, part time, work charged, temporary, daily wagers, self-employed and so on.
Absence of such a right or protection is devastating because besides bringing down the morale of the workers, it chokes the outlet through which the workers’ voice is heard against arbitrary discharge, dismissal and termination of employment. The worker is left with no protection against occupational risks and unsafe work environment that has been seen to be responsible for a spurt in a number of accidents both fatal and non-fatal. Absence of bargaining power also brings down the levels of wages/income and low income naturally leads to poverty, poverty to child labour and child labour to crippling of human resource.
Forced Labour
Existence of forced labour is an aberration which arises out of a relationship between the employee and the employer resting on regimentation and coercion. Such an aberration, which was already in existence for centuries, has been accentuated in the wake of the LPG syndrome. This can be explained in the following manner.
Normally, every work is expected to be a source of great excitement and joy if it is performed under just and fair conditions and related to the age, strength and volition of the performer. Anything to the contrary is bound to be a source of irritation and anger, demoralisation and demotivation. The net consequence of such a scenario would be that the performer cannot contribute his/her very best and this is bound to result in his/her alienation from work.
Article 39 (e) of the Indian Constitution read with Articles 23 and 24 speaks against forced labour and child labour in the following words:
The State shall in particular direct its policy towards securing that the health and strength of workers, men, women and tender age of children are not abused and that citizens are not forced by economic necessity to entire avocations unsuited to their age and strength.
Thus, freedom to work or not to work is a cardinal principle in a sound employer–employee relationship which should also be humane. None can be forced to work against his/her wishes. Conditions which will be conducive to willing cooperation will have to be created for every worker to enable him/her not only to work with sincerity and devotion but contribute his/her very best to the enterprise in which he/she is employed. This principle permeates itself in different forms and languages.
Workers’ rights are protected through a series of International Treaties such as Universal Declaration of Human Rights (Art 4) adopted on 10.12.1948, Anti-slavery Convention adopted by the League of Nations (1926), ILO Convention No. 29 on Forced Labour (1930), ILO Convention No. 105 on Abolition of Forced Labour (1956), UN Supplementary Convention on Abolition of Slavery, the slave trade and institutions and practices similar to those of 1926, etc.
Viewed in this perspective, existence of forced labour is an outrage against humanity, a negation of inalienable human rights, anathema to civilised human existence, an affront to human dignity, equality and freedom and the very antithesis of decent work.
Forced labour is not only in vogue but is reappearing in new and multiple forms of new bondage such as compulsory participation in public works projects, in agriculture and remote rural areas, domestic workers in forced labour situations, victims of debt bondage, forced labour imposed by the military and trafficking of women and children for forced labour.
Poverty, unemployment, landlessness and assetlessness, absence of alternative avenues of credit for consumption and ceremonial purposes leading to indebtedness, illiteracy, repugnant caste system, inequitous land tenurial system, tribal land alienation, migration, breakdown of the traditional family structure and emergence of atomised families, death of parents, lack of social support for orphans and destitutes, civil disorder, political repression, gender and racial discrimination, individual and collective aberrations, social backwardness, flourishing tribe of middlemen and their greed and rapacity can be identified as some among many factors contributing to emergence and continuance of the multiple forms of forced labour as above.
Mindsets Existing in Law-enforcement Mechanism
The type of empathy and sensitivity which is needed for an in-depth understanding of the problem of forced labour or debt bondage is conspicuous by its absence among the custodians of law enforcement.
That sensitivity lies in the following words with which Shri K.V. Raghunath Reddy had introduced the Bonded Labour System (Abolition) Bill on 27.01.76 in Parliament. To quote him: ‘He will not have inputs for production or any supply of credit. He will neither have any professional skill that would enable him to pursue an independent livelihood. He may not be acceptable to the urban labour market either. Even when installed in a profitable activity, he will have no income during the period of gestation from the income generating process. The bonded labourer who is used to a world of domination and servitude will not obviously be aware of his rights and will not have any staying power in the competitive labour market. At times, he may not like to undergo the strenuous process of economic rehabilitation. He may even prefer reversion to thraldom.’
Lack of empathetic understanding is further compounded by a number of mindsets of the so-called custodians of law enforcement. They tend to ignore that bonded labour exists because not only is the admission a slur on the image of the government, it brings discredit to the administration. Besides, any such admission has the potential to create avoidable unrest upsetting the equilibrium in rural society which is essentially traditional and status quoist.
Despite all talk of modernity, there are vestiges of feudalism or customary bondage. They are reflected in outrageous practices being undertaken by some communities and groups such as barbers and washermen in Puri district of Odisha, bajgees of Uttarakhand and Rudalis of Rajasthan. The barbers and washermen get approximately 10 to 15 Kg of paddy per head called Bartan for each married male. Such Bartan is paid once a year at the time of Holi festival. In return, barbers have to perform acts that would be repugnant in any civilised society such as washing the feet of their ‘masters’, lifting leftovers, cleaning utensils and foot-colouring of the master’s women. The washermen are forced to wash and iron dirty clothes. Refusal to render such services would make the barber and washermen socially and economically ostracised.
The Bajgees of Uttarakhand are called upon to beat drums at the time of ceremonial festivities. Rudalis in Rajasthan are called upon to artificially mourn at the time of death of a member in a family. Mahasweta Devi, Gyanpeeth award winner, distinguished novelist and social activist has vividly brought this out in her epic novel Rudali. Both the Bajgees and Rudalis perform such service without any remuneration and are, like the barbers and washermen of Puri in Odisha, victims of the worst forms of customary bondage.
Supreme Court and Debt Bondage
Amidst this welter of mindsets and the enveloping gloom which surrounds the prevailing perception, the directions of the Supreme Court stand out like a streak of lightning. The apex court has not changed the law but has given a very broad, liberal and expansive interpretation of the law. Without this the law would have been used as a tool or instrument of exploitation and not of any relief to the victim.
To illustrate, according to the judgement of the Supreme Court (Bandhua Mukti Morcha (WP No. 2135 of 1982) vs Union of India and others-date of judgement 16.12.83), it is not necessary to prove beyond doubt the element of loan, debt and advance; this should be presumed to be in existence.
It is left open to the employer as also to the state government to rebut such a presumption but until and unless it has been done to the satisfaction of the court, the court must proceed on the basis that the labourer is bonded and is entitled to the benefits of the provisions of the law.
In Bunker Roy vs State of Rajasthan and others, the apex court held that the Rajasthan Famine Relief Code cannot override the provisions of Minimum Wages (MW) Act. If there is any exemption of the said code from the applicability of the MW Act, it would be clearly violative of Article 23 of the Constitution.
Similarly, in Asiad Workers Case (WP No. 8143 of 1981), the apex court held that denial of minimum wage which is a rock bottom irreducible subsistence wage, would be a violation of Art. 23 of the Constitution and would tantamount to existence of forced labour.
The apex court, in Bandhua Mukti Morcha case, held: ‘It would be cruel to insist that a bonded labourer should have to go through a formal process of trial with the normal procedure for recording of evidence. A bonded labourer can never stand up to the rigidity and tyranny of the legal process due to poverty, ignorance, illiteracy and socio-economic backwardness.’ The same principle was reiterated by the apex Court in Neerja Chaudhury vs State of MP on 8.06.84 (WP Crl No. 1263 of 1982).
Amongst the few other seminal directions of the apex court are that release and rehabilitation should be simultaneous. If not, there is every possibility of freed bonded labourers lapsing back to bondage of their erstwhile master on account of poverty and socio-economic backwardness. Proceedings against the bonded labour-keeper should be simultaneously but separately initiated and pursued and not mixed up with release and rehabilitation of bonded labourers which will have to be secured with immediate effect. If not, the latter would never see the light of deliverance in their lifetime. NGOs and voluntary Action Groups operating at the grass root level are better suited to deal with issues relating to identification, release and rehabilitation of bonded labourers than Commissioners, Collectors and Panchayats.
Migration and Bondage
Right to freedom of movement from one part of the territory of India to another is a guaranteed fundamental human right under Article 19. Migration per se, therefore, is not objectionable. Migration, (both overseas and domestic) as a matter of fact, opens up outlets for harnessing an individual’s imagination, ingenuity and creativity if it is regulated under just and fair conditions. As a matter of fact, like freedom in mobility of capital, there should be greater freedom in movement of people across the globe which would lead to assimilation of inter-country cultures apart from harnessing economic opportunities and benefits. That would be a logical corollary of the globalisation process.
Regretfully, however, migration-both domestic and overseas has been fraught with wanton cruelty, discrimination, denial and exploitative practices some of which are anathema to civilised human conscience. This needs elaboration.
As far as overseas migration is concerned, over ninety million people work and live outside their country of nationality. Their number is growing rapidly in some regions on account of worsening imbalances in employment and income opportunities between migrant-sending and migrant-receiving countries. Globalisation has undoubtedly opened up wider avenues of work opportunities and the craze for overseas employment is on the increase.
A large share of contemporary migration is organised by profit-oriented and often unscrupulous agents and this takes place under abnormally inhuman conditions. The sponsors do not turn up at the destination point, the terms and conditions of recruitment are unilaterally and arbitrarily altered to the disadvantage of migrants and often violated with impunity. The mechanism for ventilation and redressal of grievances of the aggrieved is by and large absent. Linguistic barriers, absence of organisations of migrant workers and total unfamiliarity with laws and court procedures at the destination point compound the plight and predicament of overseas migrant workers. Even when the migrant dies in the alien territory, there are enormous problems in transportation of the body back to India. There is inordinate delay in settlement of the just and fair entitlement of the legal heirs of the deceased even after the Indian Embassy has used its good offices. Bans imposed against organisation of migrants in a few countries makes matters still worse and inhibit their already weak bargaining power.
Within the country, the scenario is even worse. Interstate migration is primarily a legacy of the colonial rule which created a few pockets of prosperity for promoting the colonial rulers’ own commercial interests (Calcutta, Mumbai, Chennai, etc.); this also led to serious regional economic disparity. Such disparity has been further accentuated due to uneven transfer of resources on the one hand and absence of a sound policy which would promote equitable regional development on the other. This together with a few pockets (like Punjab and Haryana) which were geographically better endowed propelled to the movement of people in large number from the less endowed (dry, drought prone) to better endowed pockets in search of jobs and for sheer biological survival. The movement of Bhil tribals from Jhabua to the quartz processing units of Godhra in Gujarat or the movement of the rural poor and unemployed from Bihar, Odisha and Madhya Pradesh to the ship-breaking units in Alang in Bhavnagar coast in Gujarat or of boys and girls from South Rajasthan to BT cotton in Gujarat would come in this category. Examples of such distress migration (Palmuri labour from Mehabubnagar in Andhra Pradesh to Mumbai, from KBK region in Odisha to Raipur, Vizag, Vijaywada in Andhra Pradesh; from Banda, Balia, Basti, Deoria, Gorakhpur, Azamgarh, Mirzapur, Sonbhadra, etc. to Punjab, Haryana, Maharashtra, Gujarat, etc.) are many.
Such people are invariably recruited by middlemen on receipt of advances and accompanied by family members. The document for such advances would always remain with the recruiting agents and its contents will never be disclosed to the migrants. At the time of recruitment, a lot of promises and allurements will be made but no sooner the migrant worker arrives at the destination point than these promises will be belied and instead he/she will be subjected to a chain of ruthless exploitation.
This will be by way of long hours of work, non-payment of wages including OT wages and weekly off, no residential accommodation of the standard prescribed in ISMW (ROE & COS) Act, 1979, no accident insurance, non-reporting of accidents to the Commissioner Workmens’ Compensation and no voluntary deposit of workmens’ compensation under the Employees Compensation Act, 1923. No arrangement is made for specialised treatment of occupational diseases. To make matters worse, the migrant workmen can neither leave the worksite and go in search of an alternative employment in the face of such oppressive treatment and will always be told: ‘You owe us so much towards principal and so much towards interest and will have to continue to serve until the advance taken by you has been fully liquidated.’ The wages payable to the workman are adjusted with advances paid earlier by the employer in a unilateral and arbitrary manner and the quixotic arithmetic of the entire exercise would never be explained to the workman. He/She will be at a loss not knowing whom to approach to ventilate his/her grievance and when and how to redress it.
Labour Market Discrimination
The simplest definition of discrimination in employment and occupation is treating people differently and less favourably on account of certain characteristics such as their sex, the colour of their skin or their religion, political beliefs or social origins irrespective of their merit or requirements of the job. There is no rationale or objective criteria for such discrimination which is mostly guided by perceptions (rather than objective norms) and perceptions are shaped by the societal norms obtaining at relevant times.
Statistical discrimination explains why discrimination persists in labour market. It is based on the premise that firms cannot minutely scrutinise the productivity of industrial workers. They tend to rely on easily observable characteristics such as race or sex as an indicator of likely productivity.
The extent of discrimination in labour market could be judged by in terms of access to employment and economic accounting, equal wages for work of equal value and treatment of the work force with dignity, decency, equality and freedom.
The picture which obtains in the current labour market in respect of the above three may be indicated as under:
Discrimination in terms of access to employment
Women as a general rule are undercounted in labour force, underestimated in their work performance and undervalued in economic rewards.
A large part of women’s economic activities consists of production of goods and services for the use of their own household and as a result these do not get captured in market oriented concepts of income and employment.
Women’s work even in the production of goods and services for the market is often ignored due to its being intermittent and subsidiary to their non-market and non-economic household work.
Discrimination in access to equal wages for work of equal value
More and more women tend to seek part time employment, precarious employment contracts and uncertain incomes. Women continue to work longer hours than men everywhere. Despite enactment of law in many countries, women’s wages have seldom equalled with those of men.
India has ratified Equal Remuneration Convention No 100 of 1951 in 1958 and enacted Equal Remuneration Act in 1976 but instead of providing equal remuneration for work of equal value provided equal wages for same or similar nature of work which is not one and the same as that of equal wages for work of equal value. While the norm ‘equal wages for work of equal value’ is more precise and can be computed in a more scientific manner, ‘equal wages for same and similar nature of work’ is imprecise and not easily computable.
Treatment of workforce with dignity, decency, equality and freedom
Between 1944 when the Philadelphia Declaration was adopted and 2003 as many as forty Conventions, Protocols, Declarations and Resolutions have been adopted by the UN and some of its specialised agencies like the ILO against discrimination and in support of equality of opportunity for employment, equality in treatment at the workplace and protection of human rights. All of them have dedicated themselves to protection and non-discrimination against women, migrant workers and their families, indigenous tribal people, minorities (ethnic, religious, cultural and linguistic), disabled persons, persons afflicted with HIV/AIDS, etc.
Despite so much of international consciousness and commitment to fight discrimination on the part of so many UN bodies (UNDP, UNICEF, UNESCO, UNIFEM & ILO) discrimination persists and is getting more and more intense.
To illustrate, one amongst the many contributory factors, labour markets do not function with optimal efficiency. In a free market economy (which is neither free nor fair) labour market is full of imperfections, imbalances and inequities. The unequal distribution of knowledge, intelligence and talent on the one hand and income and wealth on the other lead to inequality of opportunities.
In his inaugural lecture for the Radcliffe Institute at Harvard University, Prof. Amartya Sen took a comprehensive look at the many faces of gender inequality. He lamented that the data thrown up by the 2001 decennial census has projected a split India—splitting the country into 2 nearly contiguous halves. Like the seven deadly sins, Prof. Sen brought out seven types of gender inequality such as: mortality inequality, natality inequality, basic facility inequality, special opportunity inequality, professional inequality, ownership inequality, household inequality.
Inequality and discrimination is thus pervasive despite the fact that Art 16 of the Constitution clearly says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. It says that no citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible or discriminated against in respect of any employment or office under the State.
Social Security and Social Protection
The importance of social security and social protection is now felt more acutely than ever before. Security is a multi-faceted phenomenon. It implies health and safety at the workplace. It means assurance for a stable flow of income and easy access to public services and goods. It means secure income in old age or ill health and protection against contingencies of illness, death, disability, infirmity, loss of earning, etc. It encompasses the right to freedom from violence, tyranny and oppression. It encompasses the right to organise and defend ones rights. In totality, it implies creation of a healthy, contented, motivated, productive stable work force. Social security is the very foundation of a decent society; it is the primary source of social legitimacy.
Social security and protection on the whole came in the past from centrally planned economies as also from variants of welfare States. The first one is getting disintegrated while the second is under severe pressure from high unemployment, ageing, increasing demographic imbalance, higher poverty rates and changing expectations of the target groups. The social security systems in the past were primarily directed to curb the severity of market forces, help maintain stability of income and ensure adequate access to medical care and social services. Today regretfully, those very systems are under severe strain from critics in both developed and developing countries.
Regardless of these criticisms, however, the fact remains that about 80 per cent of the world’s population is excluded today from any form of social security protection. The threats of dislocation to their lives which they face are from multiple sources. First, during this period of severe global recession, instability and volatility of financial markets, the number of unemployed and under employed is very high. Global ILO estimates suggest that nearly 200 million people are fully unemployed. Many are forced to eke out a living in casual jobs, self-employment or other forms of under employment with very low productivity. Second, unequal access to labour market has given rise to acute youth unemployment in both developed and developing countries. Third, women constitute majority of the low paid or unpaid atypical work force and their working and living conditions are going from bad to worse. Fourth, older workers who are displaced from regular and protected jobs are often excluded prematurely from work and end up in other forms of low quality but precarious jobs. Fifth, the number of physically, orthopaedically and visually handicapped workers is on the increase and they are major victims of social exclusion. Sixth, the increase in informal sector activities is the offshoot of displacement of modern jobs. The capacity of the modern public, private and cooperative sectors to create new jobs is inhibited which implied that major portion of the population has moved in search of work into informal sector activities which yield low productivity and income and scant social protection.
Thus, with globalisation, more flexible labour markets, restructuring of the formal sector and swelling of the informal sector a growing number of people and workers in particular are totally deprived of mainstream forms of protection. Such insecurity breeds fear, impoverishment and socially irresponsible behavior (including propensity to commit crimes) while preventing people from realising their potential as workers, human beings and members of the society. These are disastrous trends which unless grappled with timely are likely to spread chaos.
History and Role of Trade Unions
The All India Kisan Sabha was formed with the central objective of organising the poor peasantry and the agricultural workers under the auspices of the Indian National Congress since 1936. This organisation later broke away from the fold of the Congress and became the rural wing of the undivided Communist Party of India. After the split of the Communist party, the Sabha split into two parts. The All India Kisan Sabha (CPI-M) included the peasantry as well as the agricultural workers while the All India Kisan Sabha (CPI) formed a separate organisation with Bharatiya Kisan Mazdoor Union exclusively for agricultural workers. The All India National Trade Union Congress (AITUC) also formed as its affiliate an organisation called the Indian Rural Labour Federation.
The Kisan Sabha was the product of a movement directed against imperialism and colonialism. In the early days of its formation it did succeed to forge a link between the land owners, zamindars and talukdars as also rich and middle peasantry and agricultural workers in the form of a multiclass alliance against foreign rule. The Kisan Sabha provided the leadership to militant movements like Telengana in Hyderabad and Tebhaga in Bengal. These initiatives were, however, short lived. The combination of multiplicity of interests under the umbrella of one organisation prevented it from taking an aggressive and militant posture entirely in the interests of agricultural labourers who constitute the lowest strata of the rural poor.
An important lesson of history or historical insight comes from attempts to organise the unorganised rural poor. It is futile to make an attempt to cover various groups with wide ranging diverse interests under the umbrella of one organisation as it gives rise to contradictions which prevent the movement to gather momentum and acquire a firm base on the ground. The unity visible on the surface will at best be an artificial one. The second important lesson of history emanating from such attempts is that the movement should go beyond rackrenting and absentee landlordism, be far more intense and directed against meaningful land reforms including allotment of land to the tiller, registration of share croppers, legislative enactment to protect and safeguard the interests of share croppers. These moves should be coupled with total liquidation of rural indebtedness, review, revision and enforcement of minimum wages for agricultural labourers and bringing about qualitative change and improvement in the status of agricultural labourers from serfdom to ownership of holdings and assets.
In June, 1853, Karl Marx had lamented ‘increasing deterioration of an agriculture which is not capable of being conducted on the principle of free trade, free competition of laissez faire and laissez aller’. He had further deplored how the new British technology of the steam engine uprooted the normal natural interface between agriculture and manufacturing industry.
That was indeed a prophetic vision. Can there be any doubt or dispute that the GDP rate of economic growth in India (which had reached 9.4 per cent in 2006 and which has plummeted to below 7 per cent in 2012) cannot be sustained very long unless agricultural production and productivity was stepped up substantially and simultaneously? And if that did not happen what qualitative improvement and change can be brought about in the condition of agricultural labourers who are not merely producers but also consumers and cannot survive in a climate of spiralling prices of food grains and other commodities when there is no corresponding increase in their wages.
Trade Union Movement Problems, Constraints, and Challenges
Trade union movement globally and in India is in the midst of a major transition. Unions with internal membership have come into existence in private sector and multinational companies and have been able to secure visible gains in wages and allowances of workers. This is a major challenge to traditional trade unions which are politically affiliated and which are under the control of outside elements as opposed to rank and file workers within a trade union.
Trade union membership is the highest in the manufacturing sector and the lowest in agriculture, construction and other unorganised sectors. While the number of registered trade unions in India increased from 3766 in 1950–51 to 55, 784 in 1990–93, the membership of trade unions has come down over the years as also the union density.
There are other disquieting features in the trade union movement in India. National federations have progressively lost their influence over enterprise units. Contractualisation, casualisation and informalisation of the economy have caused a set back to the trade union movement. Mobilising contract, casual, part time and temporary workers whose number is on the increase is a formidable proposition as they are scattered and fragmented; there is no stability and durability in employment or continuity in their tenure, they keep on shifting employment from one place to another and protecting and safeguarding their interests is not easy.
Coupled with these factors, a series of recent judicial pronouncements have caused serious consternation among workers. A judgement of the Bombay High Court sentencing workers of Bajaj Automobiles, Pune for unlawful assembly, rioting, etc. caused considerable demoralisation demotivation of trade unions. Supreme Court upheld a judgement of the Kerala High Court banning bandhs, sending further shock waves among trade unions. It does not help matters that trade unions, over the years, have lost sympathy of the common man as frequent strikes disrupt day-to-day life. Sickness of industrial enterprises caused due to shortage of raw materials, capital, indifferent market, outmoded technology and inefficient management has also contributed to deceleration in the growth of unions. Voluntary separation schemes, multiplicity of trade unions prompting management of industrial enterprises to take recourse to bipartite negotiations as a tool of resolution of disputes in preference to negotiation through trade union and constitution of quality circles as consultative fora in the industry have led to erosion in strength of trade unions.
Conclusion
The history of labour rights has thus moved like a curve with series of vicissitudes and ups and downs. The century of struggle and sacrifice dating back to 1825 and ending up with creation of ILO in 1919 can be said to be the golden era in trade union movement. This period also saw the birth of May Day or International Labour Day on 1 May, 1886, a day of solidarity and protest for just and fair rights of labour. The period between 1840 and 1847 gave birth to a whole system of labour philosophy based on unity and solidarity of the working class, evolution of labour laws and institutions which will be protective and anti-exploitative.
The Magna Carta of liberation of the working class that is Communist Manifesto of Karl Marx and Frederick Engels also saw the light of the day during this period. It is true that formation, growth and dissolution of first, second and third international in 1864–71, 1872–89 and 1890–1919 had passed through a lot of cataclysms and bickerings among Marxian Socialists, Bakuninists and Fabian Socialist but they had also set a number of significant historical trends.
These were honest and sincere attempts to bring inchoate socialist groups lying scattered and fragmented in different countries. The period between 1901 and 1948 saw formation of a number of international federations of trade unions. This period also saw adoption of the landmark Philadelphia Declaration at the 26th session of International Labour Conference in 1944. The principles which were enunciated through that Declaration continue to be valid even today. Between 1919 and now over 180 Conventions have been adopted by the International Labour Conference of which 8 are being treated as core labour standards such as Right to Organisation and collective bargaining—Convention No. 87 & 98; Right to freedom from forced labour–Convention No. 29 & 105; Right to freedom from child labour— Convention No. 138 and 182; Right to freedom from Discrimination–Convention No. 100 & 111. Of these India has ratified Convention No. 29,105,100 & 111. It is yet to take a final view on ratification of Convention No. 87 and 98, 138, 182.
There are redeeming features as well as dilemmas and concerns on the Indian scene vis-a-vis the Core Laboure Standards (8).
Trade union movement in India was also an integral part of the freedom movement in India. Respect for the dignity, equality and freedom of the individual was the quintessence of the freedom as well as the trade union movement. Indian Constitution guarantees fundamental rights to citizens against authoritarianism of the State; freedom of expression, freedom of association and freedom of assembly constitute the quintessence of these provisions. There are over 250 legislations covering trade union rights, right to resolve disputes, workers’ protection in terms of age of entry to the world of work, hours of work, wages, health, safety, social security, etc. Coupled with this are mechanisms for grievance ventilation and redressal which are being continuously reviewed and strengthened to suit them to conditions in a fast-changing environment.
However, there are major areas of concerns especially because India has a large section of workers in the public sector majority of whom do not enjoy the benefits of ILO Convention No. 87 and 98. Severe restrictions continue to be imposed by the government to ban strikes in public services and public services and public servants in India are governed by a separate set of Rules and Regulations and their job security is ensured by Articles of the Constitution but these are not available to industrial workers.
In the ultimate analysis, globalisation and labour rights inherent in the eight Core Labour Standards of the ILO have to co-exist; one cannot do without the other. This is for the simple reason that our work force has to be productive if our economy has to be competitive. Our work force cannot be productive unless it is literate, skilled and aware on the one hand and healthy, contented and motivated on the other.
We cannot have such a work force if core labour standards are not observed and if labour rights continue to be violated. It is in this sense that the market forces cannot afford to alienate the labour force and disown the rights of labour if they have to withstand the onslaughts of global competition. They cannot afford to depress wages as low wages would mean low calorie food, less of nutrition, less of productive energy and less of productivity. They cannot afford to make people work under forced or compulsory conditions as that would stifle individual initiative and motivation for work. They cannot afford to ignore the basic requirements of a safe, clean and congenial work place which is synonymous with decent work and decent work is synonymous with productive employment.
Indian trade unions are now required to fight on two fronts. They have to confront the onslaughts of multinational corporations while, simultaneously, face the negative fall-out of the LPG syndrome characterised by lay-offs, retrenchments, closures, mergers and acquisitions. We are in a situation where we cannot achieve our desired objectives by burning Lancashire cloth or through charkha. These symbolised great events of history at the relevant point of time but not now.
Simultaneously, from the side of industry or enterprises, no purpose will be served to attribute all the blame for their internal failures on labour laws and labour law enforcement. Labour laws represent enabling mechanisms enacted at a particular point of time either in response to the obligations arising out of ratification of international treaties (like ILO Conventions) or in response to the mandate of the Constitution or dictates of a national policy in vogue at the relevant time. Similarly inspections by officers of law enforcement machinery are meant to secure compliance with laws and these cannot be faulted or wished away under the caption of ‘Inspector raj’.
We have a de-vitalised public sector which has been pampered and over protected for over six decades. SICA, 1985 has not come to the rescue of a large number of such sick enterprises which are not revivable. They alone will have to set their own house in order.
Overspending, unproductive and unimaginative spending has led to huge fiscal deficit (5.5 per cent of GDP). The changes in economic policy might have ended quota, permit and licence raj but we are yet to put an end to pervasive tax evasion, evasion and circumvention of labour laws, one scam over another and scare resources going down the drain, handing over favours and unmerited benefits on a platter to unmerited and undeserved quarters. We have to make a discrete choice between ideology and quality of services when we talk of public sector employees connected with banks, telephone, telecom, electricity and water. Even with regard to PF and ESI staff it is generally observed that they have failed to deliver good quality and timely service expected of them to the subscriber members and ensured member and their families at the time of genuine need.
Trade unions should realize that in a welfare State, the quality of services should be far more important than ideologies pursued by them. Trade unions which stand today divided, fractured and fragmented must realise the potential consequences of the manner in which they seek to protect the interests of their members regardless of the quality of service rendered to the Community and within the Community to the poor, deprived and the disadvantaged.
They must identify the genuine issues of concern which vitally affect the lives of the people like those of the workers and consumers, discuss with trade and industry, obtain a consensus, build up the wherewithal and capability to influence govt. and bring about desired changes in policy and implementation. If the laws require change, they should be able to suggest the nature and character of changes to govt. so that the legal framework is in tune with the requirements of the labour market as also with the hopes and aspirations of the working class.
From the side of the government, it must be remembered that participation of labour in formulation of social and economic policies leads to fair distribution of income, social and economic stability. No socially acceptable policies should be formulated without the voice of labour being heard.