Seemon Snigdha Jena
Confined to our homes, one of the major concerns looming in our minds is how India’s economy (which was not stable even prior to the lockdown) would be able to survive such a massive hit hurled by the COVID-19 crisis. It also makes us ponder what new challenges await us after the lockdown is lifted. But let us be rest assured that the new world awaiting us would be even more dismal and dreary especially for the unorganized migrant labour force who have lost their livelihood and are the new ‘Living Dead’.
Despite India being one of the founding members of the International Labour Organization it is ironical and at the same time it is highly unfortunate to observe that the Indian labour legislation regime is so far behind when it comes to addressing the plight of the unorganized labour sector, which accounts for a vast majority of Indian economy. The initiation made by the Union Government in this regard, by trying to amalgamate the existing outdated labour legislations into four comprehensive codes pertaining to wages, industry-employee relations, social security and working conditions of the labour force is commendable, an unconventional step to upgrade the labour regime of India in accordance with the changing dynamics of labour welfare. However, one cannot help but be skeptical as to how the Government can achieve this ambitious task considering that the already passed Wages Code has received so much of flak and criticism and the ongoing vehement stripping of the laborers of their most primal rights amidst the global crisis is shocking and most distressing.
The philosophical underlying of the Indian Constitutional debates has invoked many a great discussion, especially with respect to understanding the very idea of ‘fundamental rights’ and the fundamental rights have been afforded the status of natural rights. The rights are referred to as ‘fundamental’ not only because they are needed for a man to lead a fulfilled and dignified life, but also because these rights are not to be suppressed or trifled with by the State by imposing arbitrary restrictions and reducing to a great extent the chances of the powerful and privileged exploiting the downtrodden. Lately, the actions of many States making random changes to and issuing ordinances to scrap the labour laws is testament to the fact that the Constitution of India is no longer the Charter of Freedom which used to be the yardstick to measure the actions of the government.
India’s labour law has been criticized on multiple counts with the most condemned aspect being the depraved tiered structure wherein the majority of the workforce who are informal workers enjoy very few rights while those in the formal sector boast of legal protection and greater security. With the world of work rapidly changing that is rendering the old perception of jobs and labour force obsolete, the decision of the Government to amalgamate all the existing labour laws into Codes was a new way forward to ensure that the Indian labour regime is dynamic. But with the Wages Code already tabled and in force and the current predicament of the migrant workers makes us notice the obvious fallacies and calls for a debate on the future of labour rights in India.
Fixing of minimum wage has been accepted as an effective means to tackle poverty head on globally. The very purpose of ‘minimum wage’ is to protect workers from being underpaid and at the same time ensure that low-end workers are able to earn enough for their survival. There are many categories of vulnerable workers who are excluded from this benefit- women, seasonal workers and domestic workers. The ILO Convention on Domestic Workers, 2011 urges the member nations to ensure that domestic workers too are included within the ambit of minimum wage benefit and there should be no discrimination on the basis of sex.
More often than not it has been observed that workers are compelled to work even if they are paid poorly and in exploitative and horrendous conditions as they have to support their families. The Apex Court had made such an observation in U Unichoyi & Others v. The State of Kerela where it had opined that it is not unsurprising that in a country like India where unemployment still looms large that the labour force would offer to work even if the workers are being paid wages which is not even sufficient for leading a decent life.
Despite the fact that the rich and inspiring jurisprudence developed by the Apex Court in the landmark case of Workmen Represented By Secretary v. Management of Raptakos Brett & Another in which the age old wage structure was criticized and the term ‘living wage’ was highlighted which would enable every worker to lead a decent and dignified life is completely overlooked by the draftsmen while drafting the Wages Code.
The Code on Wages, 2019 makes a distinction between a ‘worker’ and an ‘employee’ despite the Parliamentary Standing Committee’s clear opinion that as minimum wage is a right of every working individual the Code needs to provide for a common definition which would be comprehensive enough for the inclusion of all rather than differentiating between an employee and a worker.
The Code on Wages has somewhat tried to address the situation of lack of representation and adequate measures implemented to address the grievances of unorganized sector by finally acknowledging this class of labour force which accounts for almost 93% of India’s total work force by widening the ambit of ‘employee’ which includes semi-skilled, unskilled and manual workers as well but on the flip side the introduction of the concept of ‘a fixed floor wage’ is nothing but a grim reminder and reconfirmation of the archaic principles.
Even after 73 years of independence when the entire world demands for a decent living wage to be recognized as a fundamental right for the workers, we are still stuck with the inhumane floor-level wage. Moreover, what is even more disturbing is that the floor wage to be fixed shall not be uniform for the entire nation, rather it is to be different for different states (depending upon the geographical area). Furthermore, the draft Rules on the Code on Wages, 2019 also do not specify the criteria and the method of estimation on the basis of which the floor wage is to be determined.
If fixing up of minimum wage on the basis of skill and nature of work was not enough unfairness (rather than fixing a nationwide uniform minimum wage rate considering that the skill development regime of India is still lagging behind and the Code does not has any provision for providing skill training to semi-skilled and unskilled labour force), the Code includes a provisions which states that no employee who is below 15 years of age shall be subject to fines which amount to validating child labour.
The Occupational Safety, Health and Working Conditions Code, 2019 which has received the Union Cabinet’s nod only includes establishments with 10 or more workers within its ambit which raises the question that should not smaller establishments be also covered by the Code. The Code has barred the civil courts jurisdiction and if persons are aggrieved by the decision of the appropriate authorities they have to approach the High court directly without having the option to approach lower courts and for that matter the Code does not specifies that the disputes can be entertained by labour courts and tribunals. The Code leaves much of the detailed provisions regarding health and safety measures to be undertaken by employers to ensure a secured and non-hazardous work environment is provided, working hours and other welfare facilities to be notified by the Central/ State Governments whereas the Acts amalgamated by the Code did specify the minimum requirements. With the eyes of the entire world on us it is the perfect time for us to show that even though we are a young developing nation still struggling to be taken seriously on the global platform but we are a nation which upholds the rights of the people as sacrosanct and despite the grim socio-economic circumstances we are bound to face in the future we would not sacrifice the fundamental rights of the people considering that no one better than us Indians knows how much our brave ancestors have sacrificed for us to live in peace today.
Seemon Snigdha Jena, 4th year student at KIIT School of Law
Picture Credits: DD News
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