Presentation given in the seminar organised by the All India Progressive Forum on “Social and Economic Justice in India: Emerging Trends” on 25. 01.2020 at Chennai.
The Paper presented at the Seminar is available in the following link:
Art. 39 (b) & (c)of the Indian Constitution says,
“The State shall, in particular, direct its policy towards securing—….
Existing benefits under the ESI Act are under threat because of the Subordinate Legislation for which power is being sought in the present Labour Code.
Subordinate Legislation is secretive.
A legislation cannot leave it to the Executive to correct the situation which produces unexpected consequences. Hon’ble Supreme Court has said, “Unlike Parliamentary legislation which is publicly made, delegated legislation or subordinate legislation is often made unobtrusively in the chambers of a minister, a secretary to the Governor or other official dignitary.” (ITC Bhadrachalam Paperboards Vs. Mandal Revenue Officer 1996 (6) SCC 634 and Harla Vs. State of Rajasthan AIR 1951 SC 467 and B.K. Srinivasan Vs. State of Karnataka AIR 1987 SC 1059). B
ut, the Drafting Team does not know of these niceties and the authorities also do not care.
The Supreme Court of India has in
Samatha Vs. State of Andhra Pradesh (1997) 8 SCC 191 (Para 75) observed,
“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 subserve the common good.
A relatively small Powerpoint presentation on the core issues of the Labour Code 2019 is in the following link;
Removal of percentage: Clever drafting of Labour Code on Social Security, 2019
October 2019. The venue is Ministry of Labour. A meeting of the bureaucrats of the Drafting Committee to rework the Labour Code on Social Security is on. Non-officials are also present including some co-opted Consultants.
The Head of the Drafting Committee welcomes the meet and explains the purpose of the meet that day.
“Dear all, It is very sad that the PMO has returned the Draft Labour Code that was put in public domain on 17.09.2019. Many of you are new and we are now to rework the draft publicized on 17.09.2019. What should we do about it?”
All are silent.
An official member, who was drafted anew for reworking the Draft, gathers courage and comes up with an idea. “Sir, the Economic Times (04.10.2019) has reported that the The PMO is unhappy as the concept of “universal” was missing in the draft code”. Let us simply prepare another draft providing that the benefits available to the employees covered under the ESI Act would be available to all the employees everywhere. I am told that that was the intention of the law makers when they framed the ESI Act in the year 1948. It is quite evident from Sec 1 (5) of the said Act, which says that the appropriate government shall “extend the provisions of this Act or any of them, to any other establishment, or class of establishments, industrial, commercial, agricultural or otherwise”. That Act was intended to provide social security to all the workers everywhere, ultimately. It is so simple to do so instead of preparing such a large Code without knowing the direction”.
The Head of the Committee was nodding his head in agreement. The other members also feel relieved that a real solution was in hand.
On seeing the reaction of the Head and the other members, the consultant who was in the meet becomes annoyed. He shouts at them, “What do you mean? The intention behind the Code on Social Security is not to extend real social security to the people but to take away the Security-net provided to the work force by the ESI Act and EPF Act. At the same time, we have to cite the uncovered sectors and project that we are extending social security to them? You should not talk of ESI benefits and extending it to all.”
The role of the ILO
The official who spoke first replies, “But the benefits provided under the ESI Act is the bench mark on social security. The ILO has said even that is not enough. The ILO had, in its ‘World Social Security Report’ released on 16.11.2010 said that there were many “informal labour practices” in India and that the people of India are exposed to “very high vulnerability” to poverty. Our aim should be to provide to all the working class at least the benefit that is provided by the ESIC now. That should be our goal post. A civilised nation cannot afford to shift the post to a lower level.”
The face of the Consultant gets reddened with anger. He screams at the official, “What do you think of yourself? I know what the ILO is doing. They would not open their mouth in our meet. We could project it as their consent. It happened last time also thus. What we should do is what is convenient to the employers, who want cheap labour. The ESI benefits have put unnecessary burden on the employers. You reduce the ESI benefits. I know how to manipulate public opinion. We can, through appropriate propaganda, project hell as heaven and the working population would also believe it.”
Clever drafting on 17.09.2019
“But the people are opposing when we are reducing the benefit that is already being given through the ESIC.”
“That we have already taken care of in the Draft dated 17.09.2019 itself”
“Already taken care of? ! How was it taken care of ?”
The Consultant looks at him beaming with pride. “Yes, we have done it. In the previous Drafts we had mentioned the quantum of benefits that would be provided to the beneficiaries, in respect of many benefits. For example, in the draft publicised on 24.04.2017, we mentioned that the benefit payable to an dependants in the event of death of an employee would be 50%. Immediately, many people started objecting saying that when the ESI Act provided about 90% of the wages of an employee to his dependant family as “Dependants Benefit”, how could we reduce it to 50%”.
“Yeah! That was the right question”, says that innocent newcomer.
The consultant felt a little irritated at the sense of justice and fair play displayed by that official. He rebuked, “Do not be carried away by your sense of justice. We knew what to do and we had done that on 17.09.2019. That is why no such questions are coming now from the public.”
The official is surprised. He asks. “What did you do, Sir?”
The Consultant replies with pride, “ Look! It was so simple. We did not mention the quantum of any benefits in the Draft publicised on 17.09.2019. We just said that the quantum of benefits would be decided later by the Government through subordinate legislation. Just the way we had done in the earlier Drafts in respect of Sickness Benefits. Hah hah ha! Now, nobody would be able to say whether the Bill on Labour Code for Social Security placed before the Parliament is going to provide more or less benefits than what are being given now. See how clever we are!”
The newcomers at the Committee meant to rework the Draft displayed on 17.09.2019 are stunned. One of them asks, “Sir, when are we going to publicise the reworked Draft, for which purpose we have assembled here today”
Para 692 of the SC judgment
The Consultant says, “We will not publicise the reworked draft. Because, it was made public that we were going to rework, people waited for another draft and did not send representations of substance. Now, we will go to the Parliament straight with the reworked draft, the contents of which would not be publicised as was done earlier.
And, we have majority in Parliament and we can do anything. As long as nobody remembers the contents of Para 692 of judgment of the Hon’ble Supreme Court in the Kesavananda Bharathi case, we can ride roughshod over the rights of the labour force.”
Another official who is a newcomer says, “Sir, I have read the report of the Royal Commission of Labour which prepared its report on examining the condition of labour, by touring around the nation for two years from 1929 to 1931. The condition of the working population would, in the absence of benefits as provided at present by the ESIC, would take the entire nation back to that era. Are we to progress or travel backwards?”
The Consultant feels more irritated. He says, “How do you say that we do not progress? You see the data.
In January 2020, it would be even more. Is this not progress? We want to achieve even more! And, we are restructuring the Social Security to achieve that progress, you see!”
(The meeting of the reworking committee ends)