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The Crisis of Indian Labour Law

Human Rights and Law: Bonded Labour in India by Ramesh Kumar Tiwari (New Delhi: Cambridge University Press), 2011; pp 187, Rs 495.

BOOK REVIEW

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The Crisis of Indian Labour Law become a systemic disease that manifests
deep-rooted alliances between vested
interest groups. Interestingly, four state
legislatures had already enacted legisla-
Debi S Saini tion abolishing the pernicious practice

T
he third chapter of the Constitution that enumerates fundamental rights, also contains at least two rights specifically related to work and labour: Article 23 (prohibition of traffic in human beings and forced labour) and Article 24 (prohibition of employment of children in factories, etc). Article 23, in particular, states that “Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law”. More concretely, this article has been translated into a structured protection framework through the Bonded Labour System (Abolition) Act (BLSAA) 1976.

What is the state of the human/ fundamental right to freedom from bondage for working people in India? This is the issue that the book under review analyses. As far as implementing this right of citizens as a duty of the state is concerned, the author argues that there is absence of political will on the part of the Indian state. “Democracy in India has not been able to do something substantial for the poor in terms of their social being” (p 127).

Human Rights and Law: Bonded Labour in India by Ramesh Kumar Tiwari (New Delhi: Cambridge University Press), 2011; pp 187, Rs 495.

In its six chapters, the book primarily discusses various dimensions of debt bondage in India: the ways in which it emerged in colonial India, its link with the practice of slavery, policy and implementation on slavery and debt bondage in British India, policy developments in these spheres in post-independence India and the basic structure of the BLSAA and problems in its implementation, issues involved in the rehabilitation of released bonded labourers, and the role of the judiciary in tackling this menace. As is known, the problem of bonded labour in India got prominence mainly after the enactment of the BLSAA in 1976 during the Emergency proclaimed by the then prime minister Indira Gandhi in June 1975. She included abolition of bonded labour as one of the important action areas in her 20-Point Programme.

It is important to ask whether enforcement of labour laws in India is a mere case of absence of “political will”, as Tiwari thinks, or if the malaise has

february 25, 2012

of bonded labour shortly before Parliament took upon itself the responsibility of creating a concrete structure for enforcing the constitutional guarantee. But even in these states, the action for implementation was largely symbolic. The irony is that the very same people who pass a piece of legislation become party to sabotaging the reform potential of the legislation, a very complex aspect of “governmental lawlessness” (Baxi 1982: 21). Our legal/governance mechanisms including those for labour justice dispensation often work such that the result is symbolic rule compliance rather than delivery of substantive justice (Saini 1999).

Just before the proclamation of the Emergency, the report of the Commissioner for Scheduled Castes and Scheduled Tribes was published in 1974. It was noticed that most bonded labourers belonged to the lower castes, especially the scheduled castes (SCs) and scheduled tribes (STs). The report pointed out how the debt bondage system was perpetuated, as the bonded labourer worked for the moneylender mostly against his daily meals and had to depend upon someone else in the family to earn to discharge

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Economic & Political Weekly

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the principal debt, which worked to be quite a difficult proposition under the circumstances. A bonded labourer was not free to work for others, nor did the wages paid to him fully compensate the work done for the employer/moneylender. The publication of the book Patronage and Exploitation by Jan Breman also gave prominence to this problem among social scientists. Tiwari mentions these developments, including a brief reference to the research that social scientists undertook on this practice after it came to be noticed as a serious problem.

Labour Legislation

Undoubtedly, BLSAa is a much better piece of legislation in its structure than other such laws that seek to protect labour. This Act has, perhaps, the best possible framework in the circumstances. It is democratic and not just bureaucratic. It defines bonded labour in broad terms, allows for abolishing this practice and cancelling the debt. Further, it provides for rehabilitation of the bonded labourers. Unlike most other pieces of labour legislation, this Act provides strong punishment of imprisonment for three years for employing bonded labourers, makes the offence cognisable (which again is not the case for other labour laws), and provides protection to the bonded labourer against eviction from any residential premises that he or she was occupying as part of the consideration for bonded labour. It also extinguishes the liability to pay the bond debt, and frees the property of the bonded labourer of any encumbrance like mortgage, lien, etc, that was created in relation to the bondage.

One of the most progressive parts of this law is the constitution of democratically constituted “vigilance committees” at the districts and subdivision levels. Almost none of the other 50 odd central labour laws have such provisions. Besides the district magistrate and state government officials, each committee has representation from members of SCs and STs residing in the district, social workers resident in the district, and one person from the financial and credit institutions in the district. These committees have been given the task of advising the district magistrate, providing for economic

Economic & Political Weekly

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february 25, 2012

and social rehabilitation, surveying commission of any offences under the Act, and coordinating the functions of rural banks and cooperative societies.

Despite these very bold features of the law, the practice still survives. It would, however, be incorrect to say that BLSAA is merely symbolic. There have been many cases where the activist role of the Supreme Court helped propagate the seriousness of the need to prevent debt bondage and release and rehabilitate the bonded labourers. Indeed, the higher judiciary has played a highly activist and salutatory role in the interpretation of this Act, and in reminding the governments of its liabilities.

Tiwari has not gone fully into an analysis of the motivation for carrying out the reforms through the promulgation of BLSAA first as an ordinance, and later its enactment. The BLSAA was certainly part of a legitimation exercise for Indira Gandhi’s 20-Point Programme, and for the Emergency itself. Nor has he gone into the delay of 26 years after the Constitution laid it down as a fundamental right of working people till the time it was passed. But he has analysed the contribution of different institutions in promoting the intended effects of this Act. Tiwari acknowledges the commendable work done by the Supreme Court and the National Human Rights Commission (p 119) in this regard. The key issues he addresses are explaining why state institutions become helpless or even slip into what may be called a kind of entropy when it comes to operationalising the Act in letter and spirit.

The book has done well to put the material on bonded labour abolition toge ther and explain the causality of the problems and issues. A good part of the book is the bibliographical essay at the end. It will be of great help for researchers in further exploring the subject. This section also lists all Supreme Court cases with citations. But Tiwari’s real value addition to understanding the problem is producing evidence, which leads one to conclude that the situation of nonenforcement is unlikely to improve substantially. In concluding the book, Tiwari refers to chief ministers’ disinterest in the seriousness of the problem,

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when he reports that they flatly denied the existence of bonded labour in their territories when the BLSAA was being debated at the bill stage.

Some of the other reasons for the poor implementation of the Act, Tiwari mentions, are that in many states the very definition of bonded labour was circumvented. Vigilance committees were not set up at all. Concerned labour officers were asked to go slow and dilute the stringent provisions of the law; the law was implemented only half-heartedly. Then there was the indifference of the media, the failure of the political parties to mobilise the poor in the political process and the power of vested interests. A central question the book reflects upon is of values – how they are differently internalised as instruments of subjugation, empowerment and change by different state agencies.

The Symbolism of Labour Law

Given how much of Indian labour law has been largely reduced to symbolic legislation, especially for labour in the informal, rural and unorganised sectors, it needs to be said that the state has covertly encouraged this happening. The poor implementation of BLSAA is illustration of this. Most pieces of labour legislation work so as to tacitly encourage the labour inspector to look the other way when blatant violation occurs.

This is what happens to the plight of labour, for example, in the export promotion zones (EPZs), where there is no exemption from labour laws, but the labour department is not allowed to enter these areas without the permission of the district collector, which is never forthcoming. Most people, in fact, believe that labour laws do not apply to these EPZs. Likewise, it is well known that the Contract Labour (Regulation and Abolition) Act 1970 (CLA) has been so interpreted by the judiciary that contract labour is allowed in all operations except those prohibited by the appropriate government. Thus, a large number of contract workers are employed even in core operations, though this is contrary to the intention of the CLA. These contract labourers are known to be the biggest victims of labour law violations. Besides,

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most cases of contract labour employment fall under what the Supreme Court has called a situation of “sham contracts”, which occur both in public and private sectors. As per the Supreme Court, a sham contract carries the penalty of making these workers the principal employer’s and thus liable to be made permanent. But no one takes notice of the situation; and from the workers’ point of view, the situation becomes grimmer every successive day.

Yet another recent case is that of the Maruti-Suzuki strike, where the company successfully avoided union formation by the Manesar plant workers, despite the daring of the young workers and four strikes. If one carefully reads the Fifth Schedule of the Industrial Disputes Act 1947 (IDA), all that the management did in this case was a clear case of commission of unfair labour practice (ULP). But even the media largely showed only lip sympathy with the workers in securing their human right, a fundamental right under Article 191(c) of the Constitution. The state government did not exercise its power to prosecute the management for committing the ULPs, which carry imprisonment of up to six months, according to Section 25Uof the IDA. The workers watched their doom in the midst of an unsympathetic state and vulnerable union leaders. Implementation of the law is thus not a plain issue of efficiency but is a process in which political values are subtly imbibed (Saini 1995: xix).

While explaining the contemporary climate of state lawlessness, especially as far as human rights of labour are concerned, Tiwari quotes Gunnar Myrdal who described south Asian countries as “soft states”, and Jawaharlal Nehru’s worry of a “lack of social outlook” (p 125). In view of this reviewer’s own experiences and research, and the evidence provided by Tiwari himself about the working of different state functionaries (except of course the judiciary) in taking on the menace of bonded labour, the situation is a grave one. Tiwari has produced enough evidence and analysis on the human rights violation of the labouring masses to lead the reader to agree with John Kenneth Galbraith’s, former United States ambassador to India, description of India as a “functioning anarchy”. Otherwise, are we willing and prepared to redefine human rights in the new neo-liberal dispensation?

Debi S Saini (debisaini@mdi.ac.in) is with the Management Development Institute, Gurgaon.

References

Baxi, U (1982): The Crisis of the Indian Legal System (New Delhi: Vikas).

Saini, D (1995): “Introduction: Socio-Legal Issues in Labour Law and Development” in Debi Saini (ed.), Labour Law, Work and Development: Essays in Honour of P G Krishnan (New Delhi: Westvill).

– (1999): “Labour Legislation and Social Justice: Rhetoric and Reality”, Economic & Political Weekly, 34(39): L32-40.

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