In his letter to the Prime Minister of India, Justice
V.R. Krishna Iyer who is the Chairman of the National
Campaign Committee for Unorganized Sector Workers said,
"The temptation to rush through Parliament a half-baked
law providing for a modicum of welfare and social security
may be great, but I am sure that it will be a gross
betrayal of the expectations and genuine needs of the
37 crore workers and their dependents. I am confident
that you will not let this happen"
Earlier, on 5th May 2005, over 16000 workers, men and
women, from every part of the country had assembled
in New Delhi, marched through its streets and presented
a petition, signed by lakhs of workers from different
parts of the country and engaged in a wide variety of
occupations and employments in the Unorganized Sector,
to the Speaker of Lok Sabha for consideration by the
Petitions Committee of the Lok Sabha.
These workers have watched with a lot of concern the
half hearted attempts that the Government of India,
in the Ministry of Labour, had been making during the
last five years to put on the statute book a law for
this sector of workers, who account for nearly 93% of
the work force, who with their dependents account for
almost the entire population in need of help and who
contribute over 60% of the gross domestic product and
considerably to export earnings. Right from the time
the Second National Commission on Labour had submitted
its report years ago and recommended, in pursuance of
its second term of reference, an Umbrella legislation,
the attempt of the powers that be, seems to evade this
as long as it could and ultimately when pushed to the
corner, come up with a pale imitation of a Bill that
satisfies no sector of this vast work force. One recalls
with disappointment in retrospect, that the Ministry
of Labour had organized in Nov 2002 a National Conference
which split itself into three groups of which one was
on the legislative aspects of proposals for unorganized
sector workers, in the light of the recommendations
of the Second National Commission on Labour. The author
happened to be the part of this sub group; No part of
the unanimous worth while recommendations of the sub
group which was endorsed later by the whole conference,
finds place in the draft Bills that have been circulated
so far, despite these having undergone several drafts.
It is only in the light of the disappointing developments
that the workers decided that a National Campaign Committee
needed to be formed.
In coming to the conclusion, the workers and their representatives
were influenced by the experience of the National Campaign
Committee for a Central Law for Construction Workers
and its successful struggle in getting a Central Law
in 1996 for Construction workers, however inadequate
that law is.
One can, in retrospect, see the same thing happening
in the attempts to legislate on employment guarantee
for rural workers. The Rozgar Adhikar Yatra and Jan
Manch and the recommendations of the Standing Committee
of Parliament, which examines the draft Bill - these
are indicators of what public pressure can and should
do in such matters.
What should, then be the strategy that these millions
upon millions of workers in the unorganized sector must
adopt to ensure that they get a law that will meet their
needs, not merely in terms of 'benefits' but also and
in fact more importantly in terms of participating in
the formulation of schemes and programs and in implementing
them? In carrying out this exercises, we should not
lose sight of the ground reality that over half of the
workers in the unorganized sector are 'self employed';
also, a very large number predominantly women are 'home
based workers'.
In a 'Note on Unorganized Sector Worker's Social Security
Bill', by the National Advisory Council, it is said,
" This Bill will address part of the problem explained
above- it will build a social security system for unorganized
workers. The issue of income security and employment
security will have to be addressed by other means, perhaps
through another Bill". It is precisely this kind
of diagnosis and treatment that these workers are agitating
against. For these workers, economic and social security
are not separate entities but an integrated one. In
the case of self-employed persons who are more than
half of the workers, economic security is not mere loss
of regular earnings but also involves protection against
loss of income generating assets. The loss could be
due to national disasters or man made ones. A Tsunami
may not merely destroy the fishing nets and lines but
also the very boats in which the fishermen go into the
sea; A flood may not merely destroy the opportunities
for employment to the power loom workers but also the
very powerlooms as had happened in Bhiwandi in the Mumbai
floods; a flood may, like wise wash away the huts, and
along with it the simple tools that the humble artisan
earns his livelihood with or the goat and sheep on which
he/she and his/her family depends for their livelihood;
a man made development project may deprive a humble
farmer of his meager land and with that his livelihood;
and so on. In all these cases it is important to notice
that economic and social security are not separable
entities. No wonder the National Commission on Rural
Labour, years ago, while setting up study groups set
one up on 'Economic and Social Security', and the present
author was privileged to head the study group.
Employment, wages and social security form an integrated
aspect of the lives of unorganized sector workers. It
is not without significance that in dealing with minimum
wages, the Supreme Court of India in the Raptakos Brett
Case, included social security also as one of the elements
that go to constitute a minimum wage, a welcome improvement
of the concept of Need Based Minimum Wage of the 15th
Indian Labour Conference, almost half a century ago.
Likewise, with the steps being taken now to enact a
law on employment guarantee for rural workers, it is
equally clear that employment is an inseparable part
of the worker's life, for whom employment (and wages)
are the sine qua non for a reasonable and dignified
existence and it is only in the context of satisfaction
of the needs for employment and wages that considerations
of social security will be relevant.
Without laboring theses points further, it would be
adequate to say that the proposal to legislate piecemeal
for social security, income security and employment,
presumably in that order, is to put the cart before
the horse. We have no doubt had sorry 'experience' of
the Govt. in the last three or four decades trying to
enact a comprehensive industrial relations law; two
National Commissions on Labour, a Sanat Mehta Committee,
a Ramanujam Committee et al. have all come and gone
but the integrated law is not even on the horizon. However,
the demand for an integrated law for the workers in
the unorganized sector is not a matter that can be trifled
with. The recent mass rally of the workers on the 5th
May should serve as a notice to the Govt that the workers'
patience is not endless. They can't be fobbed off with
some half-baked law. It is in that view that one finds
the draft bill prepared by the National Advisory Council
to be wholly inadequate. There has been so far, in the
last three or four years, several drafts of law for
those workers of the unorganized sector. All of them,
barring the drafts prepared by the National Centre for
Labour and the National Campaign Committee for Unorganised
Sector Workers, have very conveniently left out any
provision regarding employment and its regulation as
well as the basic rights of workers, also, in the matter
of implementation of the law, these drafts have placed
great reliance on 'Workers Facilitation Centres', and
the NAC draft contemplates also an intermediate agency
in the shape of 'facilitating agencies'. All these are
symptomatic of an attitude of 'benevolence' towards
these workers, treating them as 'beneficiaries'. This
is precisely what the millions upon millions of unorganized
sector workers have been protesting against, as exemplified
in what they said in their Petition to Parliament, submitted
to the Lok Sabha Speaker on 5-5-05 after a memorable
rally in New Delhi. They said: "We reiterate that
we are producers of wealth for the country and do not
want to be considered mere beneficiaries of State's
munificence and treated as such. We want to be partners
and participants in the process of formulating the law
and schemes there under; we also want to be participants
in the implementation of schemes through tripartite
boards at various levels in which we are represented
in adequate strength.'
The above considerations do not find place in the Bill
recently circulated by the National Advisory Council.
Apart from the principal defect of its being confined
to welfare and social security, ignoring the demands
for an integrated law encompassing regulation of employment,
wages, rights of workers and so on, the Bill is deficient
in the material particulars even in the matter of social
security and its implementation. Let us look at them
in some detail.
According to the National Common Minimum Programme (NCMP),
"The UPA government is firmly committed to ensure
the welfare and well being of all workers, particularly
those in the unorganized sector who constitute 93% of
the work force". The statement of objects and reasons
of the Bill claims "this Bill has given statutory
shape to National Common Minimum Programmer's Commitments".
Has it? What does the term 'welfare and well being of
all workers' appearing in NCMP connote? Does it start
and end with some limited provisions relating to social
security? As stated earlier in this paper, can social
security be separated from economic security for workers
in this sector? Thus the entire Bill has begun on the
wrong foot.
The note accompanying the Bill states "it binds
the central government to providing a minimum amount
of benefits and funds". Let us look at the Bill
to find out what this 'minimum amount of benefits and
funds' is. Clause 17 of the Bill lists out a large number
of schemes, which the Authority may notify, subject
to sustainability of the fund (emphasis added). Clause
18(a) states that 'there shall be a floor level scheme
to be financed by the Union Government directly or through
cess or through contribution or through any other means'.
What started as a brave assurance, namely 'be financed
by the Union Government.' became diluted by indicating
other sources of funds. What the workers will like to
see in the law is the definite assurance of funds from
the Government. That is the reason why workers had been
demanding that a certain percentage of GDP (of the Union
and the States) or a percentage of the revenue budgets
of the Central and State Governments earmarked for social
security for these workers and that this percentage
be raised annually by half or one percent until a satisfactory
level of social protection is reached. Not for nothing
does the Constitution of the India in Article 41 talks
of 'public assistance in cases of unemployment, old
age security and disablement and other cases of undeserved
want'. Isn't half a century and more, not adequately
long time to redeem that pledge? Are we still wanting
to cling to the escape clause 'within the limits of
its economic capacity and development?' Will the NCMP
promise of "welfare and well being of all workers"
be stifled by 'sustainability of the fund'? A look at
clause 19 (a) of the Bill, which lists out the sources
of funds, makes one uncomfortable and angry. What we
want to see in the Bill is a bold statement of legislative
policy that binds the Government to promote the sort
of financial commitment that is needed and not vague
statements hemmed in by phrases like 'as may be specified'
or 'as may be prescribed'. ' By suitable legislation
or economic organization in any other way' as envisaged
in Article 43 of the Constitution, the State shall have
to provide the wherewithal to honor the NCMP promise
of 'welfare and well being of all workers'. Nothing
less will do or be acceptable.
What are the minimum levels of social security that
these workers should be provided? Way back, more than
half a century ago, International Labour Organization
adopted Convention No 102 on Minimum Standards of Social
Security. The Convention provided some safeguards and
reservations as far as 'developing' countries were concerned.
But all these were done fifty years ago and there can
be no justification for not adhering to those minimum
standards atleast now. The law must state firmly that
these minimum standards will be achieved in a matter
of say 10 years from the commencement of the Act, with
the assurance that right from the beginning atleast
the following measures of social security will be provided
to all the workers and their dependents from day one.
The term 'dependents' must be liberally defined in the
Act itself keeping in mind the social and economic realities
of the lives of these workers. As a minimum the following
is suggested:
a) Maternity benefits for all women workers with atleast
12 weeks of maternity leave with full wages, combined
with arrangements for child care for all children of
age group 0-6 years in child care centers.
b) Medical benefits including hospitalization benefits
for the worker and his/her dependents.
c) Sickness benefit to the worker who is unable to work
because of illness / injury and who therefore suffers
from loss of earnings also;
d) Disability benefits
e) Old age pension at Rs 300 / month (with indexation)
to all workers as reaching the age of 60 years, with
a lower age being fixed for women workers, particularly
in those employments where women find it difficult find
employment after say, 50 yrs of age.
No
mention is made of unemployment relief here, for the
reason that it is expected the law will incorporate
provisions regarding regulation of employment, minimum
guarantee of employment, rights of workers, levels
of wages keeping in view, the judgement of Supreme
Court of India in the Raptakos Brett Case and so on.
If
the contents of the Bill in terms of social security
are, found inadequate, 'the architecture through which
the Bill will be executed' is structurally defective.
The Bill envisages a National Security Authority for
the Unorganized Sector". So far, so good. But
this authority is in two parts - a supervisory board
and an executive office. The executive office will
consist of a managing director and two executive directors,
both to be appointed by the Union Government. It is
these directors who will appoint 'facilitating agencies'
to conduct the activities of the authority in the
specifically designated geographical area or particular
industry in a particular area and these facilitation
agencies will in turn set up, administer and supervise
workers facilitation centers which will provide direct
service to the worker members of the facilitation
center; the core functions of the facilitation centers
are indicated in Clause 10.
One wonders, where in all these, do the State Governments
and State Departments of Labour come in. Of course,
as a concession it is stated in clause 3 (d) that
the Authority shall formulate policies etc. in coordination
(not even consultation, much less
concurrence) with various State Governments, Welfare
Boards and other agencies. The Panchayat Raj institutions
who are supposed to be a third tier of governance
have also been given short shrift and can be best
hoped to be 'facilitating agencies'. I think the framers
of the Bill has pointed themselves into a corner,
as the 'architecture' is wholly unworkable, and one
may not be surprised if the efforts of the facilitating
agencies and centers are thwarted. The facilitating
agencies, it is stated, are appointed to conduct the
activities of Authority in the specifically designated
geographical area or a particular industry in a particular
region. There is no indication of the basis or criteria
for selecting 'designated geographical industry in
a particular region'. Will not the Authority or the
supervisory Board be consulted in this delimitation?
It looks as though there may be, in a State or in
a region of the State a large number of facilitating
agencies, say one for agriculture, another for construction,
a third for handloom and so on. If so, will each of
these, appoint its own facilitation centers? And what
is the guarantee that all workers in the unorganized
sector will be covered in such a system of agencies
and centers?
It has been the general complaint that India has fine
laws but ineffective implementation. This is particularly
loudly stated in respect of labour laws. It is ironic
that this should be so when various demands are heard
that the labour laws need to be "reformed"
i.e liberalized, in favour of the employers. By and
large, labour laws impose obligation on employers
vis a vis the workers and when the criticism is that
labour laws are not being implemented, it means that
the employers are not carrying out their part of the
legal obligation. No wonder they do not want an enforcing
agency in the shape of an inspector raj to ensure
the implementation by the employers. Hence the fashionable
cry of doing away with 'inspectorate'. In this scenario,
what are the chances of the facilitating agencies
and facilitating centers being able to deliver even
the meager goods, may be in an atmosphere of hostility
from existing departments and other agencies, not
to mention the likely resentment from the State Governments
that they have been kept out of it all.
Yet, even if all goes well, there is no gainsaying
that the entire approach is one of benevolence, treating
workers as 'beneficiaries'. This is a situation that
the workers resent, They being been actual producers
of wealth and what is more being the ultimate payers
of substantial portion of the indirect taxes, be it
excise or sale tax or VAT. There fore it is that the
National Campaign Committee looks at the issue wholly
differently, in that they want the workers to be partners
and participants in the whole process of formulating
the law, schemes and their implementation through
tripartite boards and their agencies at the state,
district, taluk and lower levels. These boards and
agencies will all be tripartite at every level, representing
workers, employers and governments; as the representatives
will be close to the ground, they will know who the
defaulters are and will be in a position to apply
correctives. In fact, a part of the functions of these
bodies will be to resolve disputes that may arise
between the parties. This arrangement also avoids
the evils attributed to inspector raj and will also
ensure effective implementation of the law and the
schemes for the benefit of the workers. Above all
this will genuinely empower workers and strengthen
democracy at the gross root and upwards.
That is the grand design which all of us will have
to aim at and attain. Let us not be detracted or deviated
from this objective. If in this process of grand endeavor,
mistakes are made, then those are the mistakes made
by the concerned parties at their local levels; this
will facilitate easy identification of mistakes and
their early correction.
Law making for unorganized sector workers is neither
a difficult nor a complicated process, provided we
are clear about our ends and means. Part IV of the
Constitution of India prescribes the ends and Article
43 A also indicates the means. Let us not stultify
ourselves into interpreting Article 43 A as being
applicable only to the organized sector of economic
activity. The approach of the National Campaign Committee
for Unorganized Sector Workers has been premised on
the democratic principles. And it is only basis in
which further progress can and should be made.
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