~ Abhijay Srekanth, Fifth Year BALLB student at OP Jindal Global University
Introduction
The Constitution of India guarantees social, economic and political justice to all citizens of India and our colonial legacy at all times serves as a constant reminder for the need for vigilant reaffirmation of this constitutional guarantee, from outside and within India’s borders. The way that the Constitution chooses to bring this guarantee to reality is interesting. The right to access justice has been held to be a fundamental right, read as part of the fundamental right to life and liberty under Article 21 and Right to Equality under Article 14. A five-judge bench declared that the four essential elements required in order to realise the right to access justice are (i) the establishment of adjudicatory forums; (ii) conveniently accessible forums in terms of distance; (iii) speedy adjudication, and; (iv) adjudications must be affordable to all parties.
This paper narrows the scope of examination to access to justice in cases of labour disputes. The author shall examine the various barriers that workers face in accessing justice and then critique the State’s approach to reducing the said barriers.
An Examination of Some Barriers to Justice
Though there exist multiple barriers in access to justice, this section will examine two barriers, namely, the portability of labour in India and, the pitfalls of an adversarial labour adjudication system. An adequate examination of more issues would not be possible due to the limited scope of this paper. Moreover, current events (i.e., Covid-19) make these two barriers especially relevant for examination.
Migrant Workers and Portability of Justice in India
Migrants, international or domestic, from different corners of the country are especially vulnerable, given their presence outside formal employment systems, often working for pittances compared to non-migrant employees in similar jobs. More importantly, the fact that they juggle between home and work for months at a time makes resolving labour disputes incredibly difficult, especially for seasonal labourers that earn only for parts of the year before having to head back home till the next season. Portability of justice therefore becomes incredibly important in ensuring migrant workers have constant access to redressal mechanisms, irrespective of where they are. This is especially important given the influence that local employers (plant owners, brick kiln owners), etc. have in their respective areas over local government which makes access to justice in the area of the origin of the dispute incredibly difficult.
The Code of Civil procedure states that for a civil dispute, the court with jurisdiction will be where the subject matter is interested, or the court with jurisdiction where the defendant resides. With criminal proceedings, at least an FIR can be filed at a migrant’s home under the Zero FIR program. Actual proceedings, however, criminal or civil, will still take place where the subject matter is concerned. Juggling back between work, home and the courts is incredibly difficult for migrant workers who are in no financial position to take time off of work to come to court. The massive time that labour courts tend to take to dispose of a case (on average 5 years) only compounds this issue.
Migrant workers were, pre-2020, protected under the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 (ISMA) and Contract Labour (Abolition and Regulation) Act, 1970 (CLA). After the monsoon session of Parliament in 2020, both Acts have been subsumed under The Code on Occupational Safety, Health and Working Conditions, 2020 (OSH Code). The change in migrant protection legislation, has not, however, been entirely for the better. This may be visible given the motivations behind the Bills being ease of business.
The ISMA is applied to establishments with 5 or more workers. Under the OSH Code, this has now been brought up to 10 workers. This flies in the face of the fact that establishments with 10 or more workers account for only 1.6 of total non-agricultural establishments. In a similar fashion, the OSH has increased the number of workers from 20 contract workers under the CLA to 50. A massive number of contract workers who were already subject to scarcely enforced law will now be stripped off of even the little protection they once had.
The manner in which the OSH defines what migrants are is also troubling. It places a cap of Rs 18,000 INR for seeking relief under the Code, which fails to properly account for both, living expenses, as well as remittances back home. Moreover, the OSH fails to recognise intra-state migrants as migrants under the Code, which as per the 2011 census, made up 88% of internal migration.
The provision of a mandatory registration system for migrants is welcome in allowing them to avail public goods, such as ration, more easily. While a step in a positive direction, the requirement of an Aadhar card, a mobile phone and a bank account are structural hurdles that make it extremely difficult to avail the little that workers have fought for and been conceded to by State machinery. Some actions such as the The Supreme Court’s judgement in 2021, that mandated State’s make rations available under the ISMA, and National Food Security Act (NFSA) attempted to alleviate covid-specific problems migrant workers had. The order, however, fell short of fully guaranteeing migrant workers rations as it failed to recognise that ISMA and NFSA had since been repealed, and even before that was barely enforced. Additionally, the Supreme Court placed reliance on schemes that not all parties were beneficiaries off to begin with, that were contingent on things migrant workers may not have access to (mobiles, Aadhar, bank account). An order of this kind, though symbolic, fails to recognise ground realities in the context of accessing legal entitlements for those who are all the more deprivileged by the mobile nature of their work, making access to bureaucratic systems a nightmare.
Moving Away from Adversarial Systems of Justice
As discussed in the introduction of this article, access to justice is enshrined as a fundamental right under Article 21, though its realisation is incumbent on non-enforceable State action as a Directice Principle of State Policy in article 39A. The right of legal representation in criminal matters is a fundamental right. Access to decent representation in non-criminal matters is, however, contingent on states providing access to publicly funded lawyers through the relevant District Legal Services Authority (DLSA), established under section 9 of the Legal Services Act. Workers who meet the the eligibility criteria have the right to obtain legal representation. Actually getting such representation is however a bureaucratic nightmare, especially when workers move a suit against a state body. Moreover, not all districts in India have DLSAs, which makes accessing such representation another barrier- Uttar Pradesh has the worst ratio of 520 villages for every clinic. An empirical study by National Law University, Delhi found that legal aid representation was often a last resort by those with low funds, opting to rather hire expensive counsel in spite of their low incomes, due to bad quality of representation.
Civil disputes in labour courts are inherently adversarial procedures, where counsel for employers, often laden in social capital from top tier law firms and chambers are posed against workers’ poor quality public representation, or adequate private representation that poses a massive financial burden on them. The Constitution professes equality before law but realities are such that the manner in which pleadings are made are grossly inequitable. In addition, workers are often from socially underprivileged classes, which only furthers the gap between parties. The Legal Services Authorities Act, 1987 currently lists out certain sects of society that it recognises as inherently weaker, deserving of public representation. This sub-section posits that for such parties, the courts dispose of the requirement of counsel all together and instead conduct lawyer-free hearings before labour courts, or any such court as may be relevant.
Inquisitorial justice forums are in no way a new concept in India. The Maintenance Tribunal’s enquiry process under the Senior Citizen’s Act, 2007 is an entirely inquisitorial system, as was upheld in G S Manu v K N Gopi and Ors. The Act sets up this inquisitorial system entirely out of its recognition of elder citizen’s relative absence of social capital in comparison to their younger relatives. Similar systems could be set up in labour laws, where judges or other forums could make independent findings after failure of conciliatory systems between workers and employers, especially in establishments without works committees, thereby removing a practical barrier to equitable justice.
Conclusion
The Indian State has a long way to go in order to fulfil its constitutional commitment to access to justice. Recent moves to assimilate labour regulations not only leave the vulnerable class of migrant workers with a massive disservice, but betray the State’s commitment to bourgeoise interests, over those it has sworn to protect. Moreover, inequities in access before courts by virtue of the nature of representation require urgent redressal if equal access is to be achieved, both, in name and, spirit. This paper has restricted itself to merely two barriers on account of limitations of time and scope, but that in no way acquits the State from its inaction on counts of caste, religion and gender based barriers to access to justice, in addition to other factors.
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