National Human Rights Commission,
Manav Adhikar Bhawan,
C-Block, GPO Complex,
INA, New Delhi 110023.
|Sub:||Code on Social Security Code, 2019– no assurance for continuation of the existing benefits provided under the ESI Act at present – violation of fundamental human rights –provisions of distributive justice – ignored – complaint – lodged.|
1. I submit that I am constrained to file this complaint, as the officials of the Ministry of Labour, Government of India, have been constantly making attempts, for the past three years, to reduce, in one way or the other, the benefits enjoyed by the working population of India, under the Employees’ State Insurance Act, 1948 (hereinafter referred to as the ‘ESI Act’), which enactment gives effect to Art. 1 of the Universal Declaration of Human Rights, 1948. The first attempt at such reduction was made by those officials in the Ministry of Labour, in the year 2017, when they put the Draft “Labour Code on Social Security & Welfare, 2017” in public domain on 16.03.2017 inviting “comments/suggestions” of the stakeholders, “as a part of pre-legislative consultative process”. Clauses 53 – 87 of this Draft Code showed very explicitly that the intention of the officials of the Ministry of Labour was to reduce the benefits made available to the working population covered under the ESI Act.
2. Some such reductions, as given below, are illustrative of the mala fide intention of the officials who drafted the Code or those who prepared the Drafting Policy for preparing such a Code, in the year 2017:
- When the ESI Act provided for payment of about 90% of the wages of an employee to his dependant family as “Dependants Benefit” in the event of death of that employee due to employment injury, the draft Labour Code reduced it to 50% only.
- When the ESI Act provided for payment of about 80% of the wages to the insured person for about 730 days, if he suffered from 34 long term sickness besides providing him and his family members with medical benefit for 3 years, the Draft Code did away with the provisions of the Extended Sickness Benefit altogether.
- When the ESIC provided for payment of about 70% of the wages as Sickness Benefit for 91 days in two consequent contribution periods, the Draft Code maintained total silence about the period and quantum of Sickness benefits and left it to the bureaucrats to decide it later, through Subordinate Legislation.
- The Permanent Disablement Benefit was reduced to 60% and Temporary Disablement Benefit to 50% of wages, in the Code, when they are paid as per the ESI Act, at the rate of 80% of the wages of the employee.
- When ESIC provided an attractive unemployment allowance of about 50% of wages for 12 months, Cl. 24 (5) (i) of the Draft Code did not provide for any such benefit and maintained total silence.
- The Draft Code did not also have any provision analogous to Reg. 103 (B) (2) to enable a retired insured person and his spouse to have medical cover forever on payment of Rs. 120 per year, on certain conditions.
- The Draft Code totally ignored Reg. 103-B (1) of the ESI Act, that enabled the Permanently Disabled Persons to get medical benefit until his superannuation for him and his wife.
In addition to the aforesaid issues connected with the benefit provisions of the ESI Act, the very method of drafting the said code was found to be so amateurish and clumsy that the authorities had withdrawn the Draft “Labour Code on Social Security & Welfare, 2017” in toto, when those defects had been pointed out to them.
3. Adequate amount of compensation (called as ‘Benefits’ in legal parlance) to the working population ensures decent livelihood. The benefits provided under the ESI Act remain a goal post assuring the working population of acceptable standards of quality of life, when in distress. It is towards this goal, the rest of the working population not yet covered by the ESI Act, should be led to. The original ESI Act of the year 1948 itself, provides for such expansion and extension. It is significant to recall in the context that the Hon’ble High Court of Madras has, while dealing with issues pertaining to the ESI Act, observed that “the object of the Act is to provide certain benefits to the employees or dependants in case of sickness, maternity and employment injury, etc., to give effect to Art. 1 of the Universal Declaration of Human Rights, 1948, which assures human sensitivity of moral responsibility of every State that all human beings are born free and equal in dignity and rights” (C. Indira Vs. Senthil & Co. – 2009 (2) LLN. 302). “The object of the legislation is to protect the weaker section with a view to do social justice” (Chandramathi Vs. ESIC – 2003 (4) LLN. 1143). Such an important statute, the ESI Act, has been providing five major benefits along with many other important benefits to the working population for the past 68 years. Not many employers could provide superior or substantially equivalent benefits and get exemption as provided for under Sec. 87 – 91 of the Act.
4. Hon’ble Supreme Court has, in its judgment dated 10.05.1995, in LIC of India Vs. Consumer Education & Research Centre, held, “Right to livelihood springs from the right to life guaranteed under Article 21. The health and strength of a worker is an integral facet of right to life. Right to human dignity, development of personality, social protection are fundamental rights to the workmen. Medical facilities to protect the health of the workers are fundamental rights to workmen. It was, therefore, held that “the right to health, medical aid and to protect the health and the vigour of a worker while in service or post retirement is a fundamental right under Article 21 read with Articles 39(e), 41, 43, 48-A of the Constitution of India and fundamental human right to make the life of workmen meaningful and purposeful with dignity of persons.
5. Hon’ble Supreme Court added, “In Regional Director, ESI Corporation v. Francis De Costa, 1993 supp (4) SCC 100 at 105, the same view was stated. Security against sickness and disablement is fundamental right under Article 25 of the Universal Declaration of Human Rights and Article 7(b) of international Convention of Economic, Social and Cultural Rights and under Articles 39(e), 38 and 21 of the Constitution of India. Employees State Insurance Act seeks to provide succour to maintain health of an injured workman and the interpretation should be so given as to give effect to right to medical benefit which is a fundamental right to the workman”.
6. But the authorities of the Ministry of Labour did not want the Indian society to attain such an ideal level. They made attempt once again in the year 2018 to reduce the benefits already available to the working population under the ESI Act. They, therefore, brought in the revised Draft “Labour Code on Social Security, 2018” on 01.03.2018. Clause 63 (Part I), 78 (Part J), of the Draft Code of the year 2018 would testify to mala fide intention of the officials of the Ministry of Labour to reduce the benefits, in contrast with Sec. 46 of the ESI Act and the relevant rules made thereunder. This was also withdrawn later as that draft also did not meet the standards of legislative drafting, let alone its contents and purpose.
7. But these officials would not leave the issue at that. Hellbent on reducing the benefits provided under the ESI Act to the working population, these officials, who did not reveal the Drafting Policy to the public till then, brought in the Draft “ Code on Social Security, 2019” which was circulated on 17.09.2019. They chose to gain knowledge the wrong way from their experience in the years 2017 and 2018. They did not want to relent from their desire to reduce the benefits already available under the ESI Act; also, they did not want the people to know of their mala fide intentions. So they chose to delete all references, wherever they were, in the Draft Code about the quantum of benefits proposed to be paid under the new Code, to the working population and took all the details of eligibility, rate and scale of all the benefits to the domain of Subordinate Legislation which would be decided later at the convenience of the bureaucrats. The phraseology used by them in Clause 34 (1) and (3) would testify to this fact. It was an uncanny trick played by the officials to cheat the legislature and the public of the nation to get a law enacted by the Legislature to arm the Executive to do something which the Legislature does not know at all. Such a law-making to empower the authorities to wield uncanalised and sweeping powers in violative of all canons of Subordinate Legislation.
8. But the circular dated 17.09.2019 of the Ministry of Labour, which put this Draft Code in public domain for discussion by the stakeholders giving time to them up to 25.10.2019 to respond with “suggestions”, “comments” and “inputs”, had been withdrawn at the behest of the PMO within three weeks, as reported by the Economic Times on 04.10.2019. People were, therefore, waiting for a revised further draft that would be put in public domain by the Ministry of Labour inviting comments and suggestions from the stakeholders.
9. But all of a sudden the Ministry of Labour sprang a shock on the public and caused a Bill (No. 375 of 2019) to be placed before the House of the People (Lok Sabha) on 06.12.2019, ignoring the pre-legislative process of consulting the stakeholders. The fact is that the Draft Codes circulated in the years 2017 and 2018 had to be and had been dumped in toto after consultation. The Draft Code of 2019 put in public domain on 17.09.2019 (inviting comments up to 25.10.2019) had been returned by the PMO itself in the first week of October 2019. The revised Draft Code which was prepared after the PMO returned the Draft of 17.09.2019, had never been put in public domain before placing it in the Lok Sabha on 06.12.2019. The officials of the Ministry of Labour had bypassed the pre-legislative process of consultation with the stakeholders before they caused it to be sent it to the Lok Sabha on 06.12.2019. The concept of democracy had been taken for a ride by these bureaucrats.
10. This Draft Code on Social Security, 2019, which is now before the Lok Sabha as Bill No. 375 of 2019 does also not go by the established principles of law-making. Clause 32 (1) and (3) of the Bill No. 375 of 2019 is identical to the Clause 34 (1) and (3) of the Draft Code circulated on 17.09.2019 and withdrawn later. It shows that the officials of the Ministry of Labour chose to deliberately cheat the people about the benefit provisions and did not want to assure them that the benefits enjoyed by the working population at present as per the ESI Act would be continued. Leaving everything to subordinate legislation, the Code has left the entire workforce in the wilderness. When an existing law is proposed to be changed, people do have the right to know whether the benefits that would be available would be the same or more or less. That precise issue has not been answered to by the Ministry of Labour. The officials of the Ministry of Labour have thus conspired against a large section of the humanity in India and have made uncertain and indefinite the assured benefits enjoyed for the past 68 years by those who had been covered under the provisions of the ESI Act. These bureaucrats have, thereby, committed a clear misconduct, by not explaining to the workforce the reason for reducing the benefits that had been paid so long. Their silence and persistent tricks played with the drafting of the impugned Code shows that they are not working for the welfare of the working population but are working for some vested interests who are against proper welfare measures for the labour.
11. I submit that the International Social Security Association defines the term Social Security as under: “Social security may be defined as any programme of social protection established by legislation, or any other mandatory arrangement, that provides individuals with a degree of income security when faced with the contingencies of old age, survivorship, incapacity, disability, unemployment or rearing children. It may also offer access to curative or preventive medical care”. This is what the ESI Act is providing all along for the past seven decades. The ‘degree of income security’ that India has been providing to its working population is ranging from 70% to 90% in the event of various contingencies as mentioned supra. There is no justification in the action of the officials of the Ministry of Labour to make the continuance of these benefits uncertain by playing with words in the Bill No. 375 of 2019 and thereby playing foul with the lives and livelihood of the working population of India covered already under the provisions of the ESI Act.
12. What is visible in the text of the impugned Bill is only the cleverness and not compassion on the part of the officials of the Ministry of Labour. Conspiring against the Labour and denying them even the existing benefits cannot be the purpose for which a ministry is supposed to function in the name of Labour. These officials have committed plain and clear misconduct by not placing the contents of the Bill No. 375 of 2019 before the public for ascertaining the opinion of the stakeholders, before taking them to the Parliament. These officials are guilty of not having honoured the concept of pre-legislative process of proper consultation with the stakeholders. It is apparent that they are working for and at the behest of some vested interests in a persistent manner to deny the existing benefits to the working population covered under the ESI Act. They did not make the drafting policy public in the years 2017 and 2018 to convince the public why they had prepared those drafts in the manner in which they had prepared it.
13. The procedure of drafting legislations requires the rulers to entrust the Drafting Team with the ‘legislative policy’. Mr. Justice. M. Jagannadha Rao, Chairman of the 17th Law Commission of India, has written a paper on Legislative Drafting. He says, “The draftsman is not the author of the legislative policy, he merely tries to transform the legislative policy into words. The legislative policy is made by the political executive which belongs to the political party which is ruling the legislature or by the monarch who reigns over the country. The draftsman must, therefore, digest the legislative policy fully before he produces the instrument of legislation which can achieve the legislative purpose”. The issue here, with the Labour Code, is why the Drafting Team does not make the concerned ‘legislative policy’ public.
14. They kept the drafting policy a mysteriously secretive one then. And even now the same mystery and secrecy continue, as could be seen from the nebulous and evasive ‘Notes on Clauses’ and ‘Statement of Objects and Reasons’ that accompany the aforesaid Bill No. 375 of 2019 dated 06.12.2019.
15. I submit the ISSA declares that Social Security is a “fundamental human right”. In India it is part of the Directive Principles and the direction is to the State to provide “public assistance”. But the officials in the Ministry of Labour are attempting at reducing the very concept of social security to be a matter of business affair instead of viewing it as a human right elevated from the state of Directive Principles.
16. Art. 22 of the Universal Declaration of Human Rights says, “Everyone, as a member of society, has the right to social security”. The ESI Act has been providing for such security that kept the image of the nation in international arena in a prestigious position. The ISSA had given the ‘Best Practices Award’ to the ESIC in the year 2012. The Award was given by the ISSA at Seoul on 30.10.2012, declaring that “The ESI Corporation of India has made remarkable efforts to extend social security protection to the workforce in India”. In all, 41 nations participated in the competition meant for Asia and the Pacific 2012 and India got the first prize. Launched in 2008, the ISSA Good Practice Award programme is organized on a regional basis over a three-year cycle and has garnered international attention from social security institutions. But the officials of the Ministry of Labour want to undo all the good things about the benefits provided under the ESI Act.
17. Distributive justice which is essential to achieve social and economic democracy has been made available to the citizens of all the civilized nations only through social security schemes. The ESI Act provides topmost social security benefits to the working population in India. It is only the nations, which implement the social security schemes, which top the list of International Human Development Index. Hon’ble Supreme Court has, in Samatha Vs. State of Andhra Pradesh (1997) 8 SCC 191 (Para 75), observed that “The core constitutional objective of ‘social and economic democracy’ in other words, just social order, cannot be established without removing the inequalities in income and making endeavour to eliminate inequalities in status through the rule of law. The mandate for social and economic retransformation requires that the material resources or their ownership and control should be so distributed as to sub serve the common good. A new social order, therefore, would emerge, out of the old unequal or hierarchical social order. The legislative or executive measures, therefore, should be necessary for the reconstruction of the unequal social order by corrective and distributive justice through the rule of law”.
18. Hon’ble High Court of Madras has, in ESIC Vs. S. Savithri 2003 (3) LLJ 250, observed that “The Scheme of the Act, Rules and Regulations spelled out that the insurance covered under the Act is distinct and differs from the contract of insurance in general….The Division Bench of the Madras High Court observed that the Act in fact tries to attain the goal of socio-economic justice enshrined in the Directive Principles of State Policy”. Hon’ble High Court has also said therein that the ESI Act “covers a wide spectrum of than the Factories Act, 1948”. The importance of the ESI Scheme to a nation would become evident from this observation. The Act provides security-net to the working population at a higher level that takes the nation to a highly civilised status in the matter of labour welfare. But the officials at the Ministry of Labour are working overtime with oblique motives to reduce the existing benefits available to the working population under the ESI Act.
19. Eduardo Doyan, the World Bank’s Vice President for Human Development, and a former Costa Rican Education in 1994-98 had said that “The debt crisis of the 1980’s in Latin America, and then the recent East Asia Crisis, have shown just how quickly people’s lives are turned upside down by steep recession, and how the poor suffer the most during these times…….So social safety nets are vital to catch people who lose their jobs, become hungry or sick. But a system that solely concentrates on helping poor people deal with a crisis (only when) it happens runs the risk of keeping them in a poverty trap by not providing any opportunities. We need to embrace a more holistic approach that make social protection more like a springboard that lets people jump into more secure lives”.
20. The World Bank’s report in 1994 had identified the existence of the link between the sound social security system of a country and its ability to compete effectively in the world market. So, at least, the business interest must motivate the need for providing social security universally. The very purpose of government is to ensure a peaceful society. A society to remain peaceful, there must be prosperity all around and, if there is disparity, there must be a cushion to absorb the resultant social shock. That can be done only through social security measures. There can, therefore, be no justified reason for the dilution of benefits attempted at by the officials of the Ministry of Labour, except that they allow themselves to be used by vested interests that work against real labour welfare.
21. The social security system established in India in the year 1948 was evolved out of the famous report of Sir William Beveridge which contributed already to the strength of the National Health Scheme in the UK. The ESI Scheme in India had been modelled on and drawn from the same ‘Beveridge Report’. Any independent analyst who examines the social security provisions of every nation for comparison and contrast would declare, unequivocally, that the ESI Act, 1948 of India is a symbol of civilisation. Every social security enactment is intended to take every society towards a civilised status. In the matter of social security, the Scandinavian countries provide examples to be emulated. Private players cannot provide real social security and they cannot have a have role in it. The Hindu, had editorially conceded on 01.01.2005, that “The package (of benefits provided by the ESIC) can rarely be matched by private employers on their own because of the heavy costs involved – not to mention the disinclination among employers, with honourable exceptions, to operate health care systems for their workforce”.
22. The working population covered under the ESI Act, should not be made to suffer from the misconduct of the officials of the Ministry of Labour who indulged in various bureaucratic tricks to deny the former the continued cash and medical benefits in the scale and rate as available under the ESI Act. But the officials of the Ministry of Labour, working under the Secretary, Ministry of Labour & Employment, Government of India, Shram Shakthi Bhavan, Rafi Marg, New Delhi- 110001, have consistently been indulging in such a misconduct consciously, deliberately and in a calculated manner during the past three years commencing from the date of the publication of the first draft on Labour Code on Social Security & Welfare on 16.03.2017.
23. I respectfully submit that
- the Code on Social Security, 2019, (Bill No. 375 of 2019 dated 06.12.2019), had been presented in the Lok Sabha with the intention of replacing the existing ESI Act (along with 8 others). The very fact that this new legislation does not assure the continuance of the existing benefits provided under the ESI Act, amounts to blatant denial of fundamental human rights to the workers and employees covered under the ESI Act.
- The reason why such an attempt to reduce the benefit had been made in the Draft Codes of 2017 and 2018 has not been explained till date by the Secretary, Ministry of Labour & Employment, Government of India.
- The Note on Clauses and the Statement of Object and Reasons accompanying the said Bill No. 375 of 2019 do also not explain why the benefits available now under the ESI Act are attempted to be kept uncertain without any assurance of their continuance in the proposed Code for which the said Bill No. 375 of 2019 has been presented.
- All these misconducts have been deliberately and consciously indulged in by the officials of the Ministry of Labour. The Secretary, Ministry of Labour & Employment, Government of India, is the authority in charge of the Ministry besides being the controlling authority of the officials who were deputed by him to draft the said Bill No. 375 of 2019. He is, thus, guilty of having not protected the human rights available to the working population, by not providing in the impugned Bill, the social security benefits which have been made available to the employees covered under the ESI Act till date.
- The action and inaction of the said Secretary, Ministry of Labour & Employment, has resulted in violation of the continued right of the employees employed in factories and establishments covered under the ESI Act, to the existing social security benefits, which are their fundamental human rights. He is guilty of having committed the offence under Sec.12 (a) (i) and (ii) of the Protection of Human Rights Act, 1993.
24. I, therefore, pray that the Hon’ble Chairman, National Human Rights Commission, may be pleased to order investigation of the issues involved in this violation of human rights of the insured population under Sec. 12 (a) of the Protection of Human Rights Act, 1993 and review the safeguards under Sec. 12 (d) thereof to prevent recurrence of such unlawful activities in law making in the future.