Chapter I
1. INTRODUCTION
Labour laws address the legal rights of, and restrictions on, working people in different organizations. It helps in mediation various relationships at workplace. This relationship varies from trade unions to employers and employees. Hence, we can say that labour laws are required to provide the rights and obligations of workers, trade union members and also the employers. Conclusively, labour law covers:
• Employer-employee relationship;
• Workplace health and safety;
• Paid leaves, annual leave, working hours, extra time, minimum wage etc.
The labour movement has been instrumental in the enacting of laws required to protect the interests of the working class in the 19th and 20th centuries. Labour rights have been integral to the social and economic development of India and in fact various countries across the world since the industrial revolution.
International Labour Organisation (ILO) was one of the first organisations to deal with the issues related to labour. The ILO was an agency of the League of Nations which was established in furtherance of the Treaty of Versaille i.e. the treaty which ended World War I.
1.1 History of Labour Legislation in India
The history of labour legislation in India and that of British colonialism are intertwined with each other. In the beginning, it was difficult to get enough Indian workers to run British establishments; hence laws for contract workers became necessary.
Laws relating to employment emerged majorly, when the employers tried to restrict the powers of workers and at the same time keeping the labour costs low. The workers began to demand better conditions at work and the right to organize so as to improve their standard of living due to which the employer’s costs increased.
The Factories Act was first introduced in 1883 and India received its first stipulation of eight hours of work, introduction of concept of over-time, the abolition of child labour and restriction of women in night employment. The impact of this measure was intended to be welfarist.
The maintenance of industrial peace deliberated to advance growth whilst maintaining sound conditions at workplace ought to be the whole-sole purpose of labour/employment legislation. Even though the industrial revolution upshot the production, the national income and so on the per capita income went to high pitch, paradoxically the fate of the multitude did not seem to improve . Rather the condition of workers only became even more deplorable.
The earliest Indian statute which regulated the employee-employer relationship was the Trade Dispute Act, 1929. Certain provisions were introduced in this Act for restraining the strikes but it lacked machinery necessary for resolution of disputes.
Escalating expectations of the workers, hopes extended by Welfare State, uncertainties caused by tremendous developments in different spheres in the industry, the decline of concept of authority, and the work ethics all seem to have played some role in the introduction of employment related laws in India. But, the problem didn’t clearly end with the introduction of laws regulating minimum wage, working hours, employer-employee relationship etc. It was required that the focus be paid to the social conditions at workplace too.
In the independent India, the derivation of labour laws is believed to be derived from various origins. Views expressed during the freedom struggle by the influential nationalist leaders during the freedom struggle, from the Constituent Assembly debates and partly from by being inspired by the International Labour Organisastion (ILO). Our Constitution lays heavy relevance on the dignity of the working people and the need for protection of Human Rights as enshrined in Part III (Articles 15, 16, 19, 21, 23, 24 etc.) and Part IV (Articles 39, 41, 42, 43, 43A & 54).
With the introduction of labour laws in favor of the people who need protection at workplace e.g. women, still there was observed widespread expulsion of women from their work. This happened when laws such as Equal Remuneration Act, 1976, which requires employers to pay the same compensation to men and women for performing the same work or work of similar nature and the Maternity Benefit Act, 1961 which assures women certain monetary compensation during their absence following childbirth. As a result of this, employers have become reluctant to hire women and prefer to employ them only for jobs categorized as ‘unskilled work’ even when substantial skill is required.
The dramatic disappearance of women from the organised, industrial and high paying sector is not surprising given the fact that there is no legislation in India which prohibits employment discrimination in the private sector. The prohibitions against discrimination contained in Article 16(2) of the Constitution are limited to state employment. Interestingly, the public sector is the only area where employment of women has increased albeit primarily in low paying jobs. Therefore, passage of new laws which provide comprehensive protection against discrimination because of sex in private sector employment is imperative.
With the passage of time, the State widened protection at workplace from different kinds of unwanted situations. Initially it focused mainly on working hours, minimum wage, paid leave on weekends etc. The scope has increased a lot and it now includes protection from harassment, discrimination and other possible offences for instance, it even makes the employer responsible for offences like sexual harassment at workplace when such harassment doesn’t even happen in the concerned premise.
Constitution of India seeks to promote equality and condemns discrimination through its Part III. Despite the existence of protective laws in Indian legislation, every now and then some kind of discrimination, harassment and offensive behavior comes across to humongous amount of people at workplace. It is important to understand the lacunas in the legislation in order to fill up the same so that these vulnerable people enjoy protection from such discrimination and offences at workplace thereby maintaining congenial conditions to work in.
Wherein the laws are not too vocal to have protected the victim from a certain offence, our Hon’ble Judiciary has taken the initiative to make the lives of the troubled better and further, punish the offender. This can be understood by looking into the much debated Vishaka guidelines which shows that the role of Judiciary when the legislation is silent about the same. The guidelines are discussed later in the paper.
Furthermore, to focus on the gender neutrality and the age factor for analyzing the plight of peculiarly vulnerable classes towards exploitation and other offences at workplace or who needs special protection in that domain, it is required that their meaning be understood:
Gender and Sex:
‘Gender’ is derived from a Latin word genus which means ‘kind’. But this meaning has totally become obsolete in the conventional era. This meaning of gender is now prevalent in the social sciences; although in many other contexts, gender includes sex or replaces it. The term gender is often confused with ‘sex’.
Sex is a biological term which scientifically and physiologically characterizes the human beings. Gender describes socio-cultural roles of men and women in society and sex mainly classifies human beings on physical characteristics. So we can say that sex is biology and everything else is gender.
Gender is something that is imbibed by the children in their process of growing up by learning varied behaviors respectively through various institutions like family, society, school etc. and this can be different in different cultures. The word gender is used to describe the characteristics, roles and responsibilities of women and men, boys and girls, which are socially constructed. Gender is related to how we are perceived and expected to think and act as women and men because of the way society is organized, not because of our biological differences.
Below are some notable definitions of gender:
“Gender is used to describe those characteristics of women and men, which are socially constructed, while sex refers to those which are biologically determined. People are born female or male but learn to be girls and boys who grow into women and men. This learned behaviour makes up gender identity and determines gender roles.” (World Health Organization, 2002, p. 4).
As defined by FAO, gender depicts ‘the relations between men and women, both perceptual and material. Gender is not determined biologically, as a result of sexual characteristics of either women or men, but is constructed socially. It is a central organizing principle of societies, and often governs the processes of production and reproduction, consumption and distribution.’
“Gender is the division of people into two categories, “men” and “women.” Through interaction with caretakers, socialization in childhood, peer pressure in adolescence, and gendered work and family roles women and men are socially constructed to be different in behavior, attitudes, and emotions. The gendered social order is based on and maintains these differences” (Borgatta, E.F. and Montgomery, R.J.V, 2000, p. 1057).
Men and Women
As discussed above, and in the most layman terms, gender is categorizing people into two categories- men and women. We have come across terms like gender inequality and gender neutrality. The reason that such terms exist is that on the basis of gender difference certain taboos get associated and hence follows discrimination, violence, harassment etc.
Even though the legislation in India has made innumerable attempts to improve the workplace a safe place to work for woman, it has failed quiet a number of times. The labour legislations, the Indian Penal Code and the Indian Constitutions have various provisions addressing the problems, granting the rights to the vulnerable and further punishing the offender but the enforcement of the same has not been very successful as a result of which the problem is yet not tackled.
From being the ‘alternate ´choice to their male counterpart and facing the age old discrimination in getting employed for their fault of being a woman to getting harassed sexually and mentally, women has to face varied disturbing conditions at workplace making it difficult for them to cope up. They are constantly stuck between being quiet and keeping the job and speaking up as a result losing the job. Mostly women choose the first option which further aggravates the already ugly condition at workplace.
Gender, because it is a socially constructed identity, it is a term that is often misunderstood to be women specific. It is seen as something that only promotes problems faced by women, their rights, division of labor, roles, protection etc. Ambit of this paper is to go beyond the misconstrued idea of gender equality by relating it with only women and moving towards the literal meaning of the word ‘equality’ although limited to problems faced at workplace.
The Third Gender
Gender is a dynamic connotation given to people in the society according to their social position hence, this is something that changes with time. This can be understood by observing the development in 2014 when ‘Transgender’ was legally recognized as the ‘third gender’ by our Hon’ble Supreme Court in the landmark case of National Legal Service Authority v. Union of India .
According to ‘The Transgender Persons (Protection of Rights) Bill, 2016’ which is pending in the Parliament, transgender person means “a person who is —
(A) neither wholly female nor wholly male; or
(B) a combination of female or male; or
(C) neither female nor male; and
whose sense of gender does not match with the gender assigned to that person at the time of birth, and includes trans-men and trans-women, persons with intersex variations and gender-queers.”
Before the legal identity and protection was provided to them, transgender people have existed in every culture, race, and class since ages. The term transgender include all such people who do not belong to the stereotypical genders or those genders that have recognition since the race of humankind took birth i.e. men and women. Talking of the present situation, ‘transgender’ has lost its original meaning and now it has been used by people as an umbrella term for lesbians, gays, bisexuals and ofcourse transgender people.
Transgender face a lot of unfavorable circumstances in every phase of their life. Talking about workplace harassment and problems, 1 out of every 100 transgender people would be facing such a problem because the rest of them get rejected at the application stage itself.. The social condition of the transgender has become so weak that the Hon’ble Supreme Court expressed the necessity to give them the status of OBCs (other backward classes).
The fact that even the schools don’t allow admissions of transgender children itself is the reason of them being under-qualified and then they get rejected for employment and even if the reason of rejection is their gender, it is never told expressly. The only solution that remains with them is that they get admission in special schools. Although, this brings them the much needed opportunity but nevertheless creates a divide. They are considered different from the other part of the population and hence such treatment has now become a taboo.
Age:
When we talk about the problems related to employment with the ‘age’ we need to carve out the area of that segment which is vulnerable and for making it convenient for study, age can be divided into:
1. Children;
2. Old age; and
3. The people falling between the above two categories.
Children at workplace occupy a relatively weak and easily exploitable position. Just like other structurally disadvantaged groups like women, ethnic minority groups, disabled etc. they face various issues at workplace. The problems faced by children are tackled in a different manner than the above mentioned other structurally disadvantaged groups, wherein the efforts are made to make the working conditions better for them. The most common historical response to the problem of exploitation of juvenile workers has been to campaign for, in the most cases to enact, and in some cases to enforce a general prohibition on the employment of ‘children’, defined by fixing a minimum age for admission to employment.
Child labor can be defined as the work that deprives children of their childhood and which is harmful to their development- physically and mentally. It refers to that work which deprives them of the opportunity to attend school, hence prematurely associating to excessively long and heavy work. This is undisputed that there are various provisions in Indian legislation and the Constitution that provides protection to the children. The same is the case with other countries. Nevertheless, there are countless issues that the children face at employment starting from child labor, mental harassment, sexual harassment, underpaying, forced labor etc. Although, the Indian Constitution guarantees right of free and compulsory education to children between the age of 6 to 14 and prohibits employment of children in hazardous occupations, child labor is still quite prevalent in the Indian economy.
Child labor is prevalent in both formal and informal sectors though it is seen more in the informal sector. Children are associated with these sectors in various types of work like construction sites, domestic work, small-scale industries etc. Industries like bangle-making, beedi-making and other manufacturing processes depend a lot on children as the child labor is cheaper and they can be made to work for longer hours. These industries expose the children to toxic metals and substances such as chromium, lead, manganese, cadmium, mercury, benzene, pesticides etc.
Losing job only because of the age factor alone is highly unjustified. With oversupply of the youth in the employment such a situation that the old age people are put to condition that they have to lose a job is a phenomenon which is not very new to India. The old age people are either losing their job in this manner or being rejected during the application stage itself. Summing up, the problems are faced right from the application to the promotion then to the continuity of the job leading to creation of such conditions (harassment) at work that people are left with no option but to leave the job.
It is really important to understand the fact that making old people quit their work in this manner will only lead to increase the population of the unemployed in India. Hence, it is nothing less than unaffordable situation for not allowing the senior citizens to keep working until they voluntarily decide to call it quits.
Another reason as to why this problem has not come up so much in the light is that the real scenario is hidden by the employers for firing or rejecting the old people. The reason that they provide is not the age but they hide it behind the defense of them being under-qualified or incompetent for the job. Because there is no statute protecting such state at employment, there is no statutory body too which can look into the situation.
Discrimination on the basis of age has become so common that it has more or less formed an independent ‘sub-culture’. Attention of the legislature towards their protection has become really important, delay of which is not affordable. In India, clearly there are no effective schemes and laws that would identify the problem of old age population in the arena of employment and eliminate the same. People above fifty years are the main victims of ‘ageism’ or people suffering from age discrimination. This concept has not received a lot of attention. India needs to draw a model for a workable mechanism for the protection of the old age from being in a very sorry state while being employed.
It is really important social security be granted to every person facing the need of it. One of the key global problems facing social security today is the fact that more than half of the world’s population is excluded from any type of statutory social security protection. Alot reasons like increase in population, industrialization, globalization etc. contributed towards creation of insecurities to persons who suffer from discrimination, violence, harassment etc. at workplace.
The old social security system has clearly failed and it is required to be renewed.
Social Security:
At all times and in every society, at every stage of development, there have been people, who for some or the other reasons are either unable to work for a living or suffer from problems that comes with it. ILO defined social security as- “security that a society furnished through appropriate organizations against risks to which its members are exposed. In the early days when human needs were limited and livelihood was based on agriculture, charitable, philanthropic and other religious institutions provided these securities.” In some countries poor houses were also established. However, the system based on voluntary charity proved to be inadequate and unsatisfactory later on.
With the introduction of industrialization and growth of society it has been increasingly felt that the institution of social security should be established. Social security measures “introduce an element of stability and protection in the midst of the stresses and strains of modern life.” Social security is an important and essential concept of human society. It is a permanent feature of protection of persons who suffer on account of various problems- economic, political, social etc.
Lot of thinking has gone into the provision of proper social security measure for industrial workers both in the country as also at the international level. The right of social security is one of the significant human rights set out in the Universal Declaration of Human Rights, which the General Assembly of the United Nations adopted and proclaimed on December 10, 1948. The declaration threw a light on the necessity of basic human rights to be protected in every sphere of human life for an individual’s total development.
Majorly, this problem occurs in the unorganized sector and that sector has an overwhelming number of workers in our country.
“The basic idea of social security is to use social means to prevent deprivation and vulnerability to deprivation” in order to ensure sustainable human development over time [Dreze and Sen 1999]. In both developed and developing countries state-supported social security in the form of protective or promotive social security has evolved to supplement and to replace the support that family, community or other charitable institutions provide. When social security is referred to, it largely addresses the benefits that people in the organised sectors of employment receive. However, in most parts of the world, large populations who are involved in informal but productive activities do not enjoy social protection or are covered only very partially [ILR 2000].
There is compelling evidence not just from countries with poor economic development, but even the rich economies, that im- provements in living standards have most often been the direct result of social intervention rather than simple economic growth. The provisioning for the social sector has to be seen in terms of the actual costs that are incurred, which are only a fraction of the total gross national product (GNP). Even this has been steadily declining in many countries. The assumption that these measures are a burden on the exchequer and therefore expensive, is misleading and is the assumption behind the proposals for adjustment that international monetary institutions prescribe to debt-ridden nations.
Analysis shows that in India, the average total expenditure for states for social security was only around 3 per cent of the net state domestic product, when calculated for 15 major states, while direct social assistance averaged less than 1 per cent. Further when social security expenditure was graded in terms of poverty, it was found that states with relatively high incomes did not necessarily have low levels of poverty [Prabhu and Iyer, 2001]. In fact, there is evidence in India, where repeated occurrences of epidemics have indicated the erosion of public health standards induced by the cuts in expenditure on health and the preventive and curative services of the health system.
Despite this the trend now is to rationalise government expenditure and allocation of public resources. Recently, there is a move towards only fixing employer responsibility of an employee’s future with regard to various insurance schemes which are also increasingly being privatised. The creation of a fund with respect to provident fund which is then “invested” thereby subjecting to market risks, is another move towards state relinquishing its welfare responsibility. The question of social security provision is being closely linked with fiscal reforms and taxation of sectors hitherto un- tapped in order to enhance social welfare expenditure, in the current climate of restructuring of the economy. The experience of east-Asian economies of providing a public corpus fund that could support the health insurance premium costs of the elderly with certain conditionalities provide an example worthy of emulation. Closer home there are some examples with different objectives already in place, such as the Life Insurance Corporation’s group insurance policy at a premium of Rs 10 for every Rs 1,000 benefit; the SEWA Bank’s scheme of integrated insurance and voluntary health services may also serve as pointers [Alam and Anthony 2001].