“The truth is that the State is a conspiracy designed …… to exploit, ……. its citizens”
– Leo Tolstoy
What Tolstoy said becomes totally true when we see the conspiratorial manner in which the Labour Code is being brought about. The intended Labour Code is, really, going to be a tool of oppression. It is intended to convert the entire labour force into slave labour. The Ministry of Labour & Employment is indulging in false propaganda through its powerpoint presentation on this issue. The Ministry is hiding many a truth behind the Code. When the Ministry wants to undo the ESI and EPF facilities, it is projecting the noble features of these schemes, as if they are going to be introduced only through the Labour Code. The Ministry which does not come forward to make public the legislative policy behind the Labour Code does not hesitate to cheat the people through the Power Point Presentations which contain a lot of half-truths and misleading statements.
The officials who are held hostages by the power-brokers, are doing their biddings to undo the welfare schemes. But, they hoodwink the people to believe in the contents of Labour Code which is,actually, intended to benefit the middlemen at the cost of the working population.
The rulers proclaim from the roof-tops that they are bringing out this Labour Code as per the recommendations of the Second Labour Commission. But, the fact is that the motive of that Commission was sinister.
That fact is established from the very Dissent Note submitted very honestly by the Member Mr. C.K. Saji Narayanan on 21.05.2002.
A few quotes are given below. The complete text of the Dissent Note can be had by clicking on the following link:
Mr. Saji Narayanan has done his work honestly, fearlessly, with conscience and without fear. He has rendered his service to humanity right.
It is the duty of every conscientious citizen of the nation to expose the ulterior motive behind the proposed Labour Code and enlighten the masses and help them get their rightful benefits as workforce restored.
People do have the right to demand from those who defend the Labour Code to give point by point reply to the observations of Mr. Saji Narayanan.
It’s Heaven! The venue is the Durbar hall of Lord Yama Dharma Raja. He had summoned the souls both from the heaven and the hell to discuss the hullabaloo around the draft Labour Code circulated by the Ministry of Labour & Employment in India, on 16.04.2017. The entire assembly is full and the crowd is overflowing outside the Durbar Hall too to watch the proceedings, which are telecast live too throughout the universe. Sir William Beveridge, who had given the monumental report on Social Security, Prof. B.P. Adharkar, the Father of Social Security in India, and other stalwarts on social security were the special invitees of the meet. Now, the proceedings!
Lord Yama Dharma Raja: “Dear Mr. Beveridge ! What is going on in India? I find there are protest marches in Chattisgarh about some Labour Code? The issue is spreading around, I am told. What is the problem?
Beveridge: My Lord ! The ultra-rich club in India is becoming more and more vicious. They are finding newer and newer methods to loot the common people. The present set of rulers are much more obliging to them than the previous rulers. That is the cause of all the problems in India, now.
Lord: Ultra-rich? What is it?
Beveridge: My Lord ! 1% of Indians have cornered for themselves 53% of the wealth of the nation. They are the ultra-rich. And, they want to covet even more. The rulers are happy to oblige this greedy rich, for quid pro quo, and betray the trust reposed in them by the common people. These rulers want the votes of these commoners to remain in power. But, they do have no compunction to cheat these commoners by colluding with the rich and ultra-rich to enable the later to loot the commoners. The proposed Labour Code is yet another example of the manner in which the rulers go out of the way to please their ultra-rich monsters, sorry, masters. That is the reason for the social tumult in the offing in India.
Lord: What is that Labour Code, after all?
(Adharkar rises up to respond to this question)
Adharkar: My Lord! We had already discussed on 26.09.2015 about the manner in which the rulers under obligation to the ultra-rich went extra mile to amend the Sec. 44 of the ESI Act, 1948 to facilitate privatisation of social security in India. (https://flourishingesic.info/2015/09/26/lord-yama-dharma-raja-discusses-amendment-to-sec-44/). But, they could not succeed in their attempt because the employees’ representatives in the supreme body of the ESI Corporation became alert to see through the game plan of the rulers. The employees’ representatives had voiced their protest so vehemently that the rulers beat a hasty retreat on 07.04.2015 in the meeting of the supreme body. (https://flourishingesic.info/2015/04/05/kind-attention-esi-corporation-members-please-ask-these-questions-on-07-04-2015/). So, they found a way around. Now, instead of trying to tinker with Sec. 44 of the ESI Act, they are going to club together as many as 15 labour welfare legislations including among them the ESI Act and the EPF Act and remove the important benefits provided under the ESI Act. They believe that people would not notice their mischievous intentions and the loss of benefits under the ESI Act when they mix all the laws together and take away the benefits provided under the ESI Act.
(At this stage Margaret Thatcher, former Prime Minister of the UK chips in. The Lord looks at her.)
Thatcher: My Lord, What Mr.Adharkar says is true. When I was the Prime Minister of the UK, there was a BBC serial titled, “Yes, Minister”. I used to keep aside all my routine work and watch that serial everyday. It explained to the people and politicians how the bureaucrats used to cheat the politicians in power. The senior bureaucrat, Sir Humphrey, in that serial would train his junior in that art. He would advice his junior that if he wanted to something wrong, he must do things in a complicated way so that the people would not understand anything. ”If people don’t know what you’re doing, they don’t know what you’re doing wrong.” But, on going through the draft Labour Code circulated by the Ministry of Labour of the Government of India, that the said advice of Sir Humphrey is used by the politicians and bureaucrats of India to cheat the common people. It is a matter of shame that India which was given independence from the British control goes the wrong way in running the nation. It becomes clear from the text of the draft Labour Code that the nation is going away from civilised way of social life. I was discussing about it with Mr. Jerome Blanqui, the great French economist of the early 1800s. His ideas contributed a lot to the evolution of formal law-making by various states on social security. He is also of the same opinion about this draft Labour Code. The present government of India is helping the greedy rich to exploit the labour class and keep them poor perennially. I am sad at these developments in India”.
(The Lord looks at Jerome Adolphe Blanqui, whose great treatise, ‘History of Political Economy in Europe – From the ancients to our day’, published in 1837 AD, was a remarkable milestone in the evolution of Social Security).
Jerome Blanqui: “Yes, My Lord ! Every society is supposed to move forward to a civilised state. I was fortunate enough to have been born in France where great souls who fought for liberating the humanity had been born and had worked for it. Voltaire, Rousseau and Montesquieu liberated not only France from the tyrants but also the entire humanity from slavish mentality. French intellectuals considered that production was “not” something that was “independent of the fate of the workers”. I have stressed the fact that “it is not sufficient for (a nation) that wealth be created, but it must be equitably distributed”. In the view of our French intellectuals, “men are really equal before the law as before the Eternal. The poor are not a text for declamations, but a portion of the great family, worthy of the deepest solicitude”, care and concern. But, I find that the present day rulers of India are moving in a diametrically opposite direction. The nation will, then, be a den of poverty and misery, with the working class having no real right to live a dignified life as they will be treated as ‘commodity’ by the rulers.
Beveridge: The intention of the present day rulers to make the working class a pawn in the hands of the employers has already become public, in the year 2014 itself. Yet, the public has not been awakened to their sinister designs. It was on 07.08.2014, that these rulers introduced a Bill for increasing the spread-over time from 10 and half hours to 12 hours, for enabling the employers to force the workers to work for about 10 hours a day, to compel women workers to work during night hours, etc., That would prove that India is on the path of retardation while other nations like Germany move forward towards reduced work hours which result in more production.
Blanqui: What is more? These rulers were sadistic enough to call that bill as the Bill for safety and health of workers.
The present Labour Code is also yet another sadistic piece. This is intended to relieve the State of its obligation to provide social assistance in the form social insurance. Common people will, however, be told that it is an effort towards “simplification, amalgamation and rationalisation”. The rulers would cover up their mischievous intentions by propagating that the Labour Code was to extend the benefits to unorganised labour including the household workers. But, the real intention is to reduce the benefits provided by the ESI Corporation and enable the private players enter into the field of social security and make a mess of it. Commercialisation of social security will result in complication of the process and deprivation of various benefits to the working population. My Lord, kindly ask for the details from Mr. Robert Owen, who is regarded as the Father of Social Security of the World. He did not only plead for the intervention of the governments of various nations to step in and enact laws for the welfare of the workers, but also for international agreement between various nations for enacting such laws. Mr. Louis Rene Villerme, the great physician, who worked tirelessly for the welfare of the working class and their working conditions in 1800s, would throw more light on it. So many illustrious figures had been fighting and canvassing for about 100 years for State intervention to safeguard the living conditions of the working class. All their efforts culminated in various labour laws from 1923 to 1952 in India, overseen by the government. But, all these developments are attempted to be consigned to dustbin by one single Labour Code.
Adharkar: Yes, My Lord! In the name of amalgamation, the draftsmen of the Labour Code have seen to it that many time-tested benefits provided under the ESI Act vanish into thin air. The ESI Act provides a bouquet of benefits. But, the bouquet has been meddled with in the Labour Code and individual benefits have been separated and are made to be chosen by every employee, telling him that his contribution would be dependent on the nature and number of benefits he wants. That is why the words “not exceeding” have been incorporated in Sec. 20.1 of the Labour Code, while specifying the quantum of contribution payable by the employer.
Lord: In that case, have they made known to the people that the benefits would not be a package but would have to be picked and chosen by the workers?
Adharkar: No, My Lord ! The draftsmen know what they are going to do but are suppressing the complete picture from being shown to the workers.
Lord: Why do they do so?
Adharkar: If they make their intentions or goals known to the public, they would not be able to privatise the social security scheme, as the public would oppose it. They will not, then, be able to please the businessmen who want to enter into the field to make money by squeezing the workers. That is why they say only a few things in the Labour Code and try to acquire power to the rulers to do many things, which are against the workers, through sub-ordinate legislations. When people ask about them, they say that they have not prepared those subordinate legislations yet. They have many such subordinate legislations in mind, like, Rules, Regulations, Schemes, Bye-Laws, Licences, etc., But, they say that they have not prepared them yet.
Lord: Is it necessary to prepare the subordinate legislations also along with the Code?
Adharkar: No, My Lord ! Subordinate Legislations can be prepared later. But, the primary legislation which empowers the executive to prepare subordinate legislations must be a self-explanatory one informing the people about the goal and purpose of the legislation. The need is more so, when the rulers want to replace the existing legislations. They have the right to compare the present position with the promised scenario in its entirety. But, the rulers do not want to give complete picture to the people, of their proposed legislations.
Lord: Can the rulers do so?
Adharkar: No, My Lord ! They cannot. There is a Legislative Department under the Ministry of Law & Justice. “The drafting of Bills” is the work of the officials of this department (http://lawmin.nic.in/more.htm). The letter dated 24.04.2017 of the Ministry of Labour shows that they do have a “Drafting Team”. That Drafting Team should have been given some directions, in writing, to prepare the Labour Code. It is those directions which would enlighten the people what is in store for them. But, the rulers do not make it public.
Lord: Okay, but when the rulers do not make something public, why do you presume that the Code would be anti-labour?
Adharkar: It is not my presumptions My Lord! There are indications in the draft Labour Code itself that the intentions of the rulers or the Drafting Team are sinister. Besides, the procedure of drafting legislations require 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. That shows that their intention is mala fide. The wordings of the draft Labour Code also testify to the existence of such mala fide intention. People do not know what benefits would be there for them and what would not be.
(John Foster McCreight, the first Premier of British Colombia and then judge of the Supreme Court raises his hand. The Lord nods at him)
McCreight: My Lord ! The procedure of law-making is the same the world over. “Drafting legislation is an art, not a science. A well-drafted bill results, not from slavishly following numerous arbitrary rules, but rather from thorough knowledge of the subject, careful attention to detail, and adherence to such common-sense principles as simplicity, clarity and good organization. In drafting legislation, British Columbia legislative counsel have two goals: (1) to construct legislation that g
ives legal effect to government policy; (2) to communicate the law clearly to the people who are affected by it, the officials who administer it and the judges who interpret it.” Satisfying both goals is often difficult, but that has to be, necessarily, done for every law. “Legislative counsel write law based on the drafting instructions they receive from the sponsoring ministry”. It is simply shocking to find the draft Labour Code of India suffering from various infirmities. I wonder how they want the public to opine on it when it is incomplete and contains so many grammatical errors too, besides serious gaps in “communicating the law clearly to the people who are affected by it”.
Lord: Do you think that the government officials would also cheat the public, because the rulers in power direct them to do so?
Adharkar: My Lord ! The bureaucracy in India is a class apart. Sir Humphrey, the fictional character in ‘Yes, Minister’ is nowhere near them, in cunningness. They would cheat not only the people but also the President. They would disobey the President himself, if his decision is not to their liking. They would, therefore, go to any length to please the bosses they like and cheat the people.
Lord: Surprising ! Can the civil service be so?
Thatcher: My Lord ! It is so in India.
Abdul Kalam: My Lord ! Let me narrate an incident. One Mahendra Nath Das was imposed death penalty by the Supreme Court. He sent mercy petition to the President of India. I happened to be the President at that time. The mercy petition was placed before me in the year 2005 and I commuted the death penalty to life term. Later in the year 2013, I came to know through newspapers that so many things happened in that case. The order issued by me in the file in the year 2005 had not been enforced. The bureaucrats had kept the file pending for years. It was later put up before my successor Pratiba Patil in the year 2011, and she rejected the mercy petition. She was not informed of the decision taken by me in the year 2005. If she had been informed, she would not have taken that decision. Moreover, there was no scope in office procedure to suppress the factum of my order to obtain another order from the President. Yet, the central bureaucrats had indulged in that mischief. It came to light in 2015 when the Supreme Court of India examined the case filed before it by the person who faced the gallows. So, Indian bureaucracy cannot be expected to be trusted blindly. They must be kept in check, by effectively making use of the Right to Information Act and by strengthening it further, instead of weakening it.
(The Lord Yamadharma Raja was stunned at the revelation by Dr. Abdul Kalam. He feels concerned about his own problems as the Lord of Justice. He looks at Chitragupta).
Chitragupta: Yes, My Lord ! If only that Mahendra Nath Das had been sent to gallows in 2011, after the rejection of the mercy petition by Pratiba Patil, it would have made our work difficult. It will be difficult for us to decide whether Das was guilty of the crime committed by him or the victim of the crime committed by the bureaucrats who cheated the President to cause his mercy petition rejected. If we have to punish him for his guilt we must send him to hell. If he is considered as the victim of the conspiracy hatched by the Indian bureaucrats we must send him to heaven and reserve the hell for those bureaucrats. We will have to weigh the pros and cons very minutely My Lord!
(The Lord nods his head in approval. He is in deep thoughts).
Lord: Okay, okay ! I am convinced that the Indian bureaucracy at the centre can be cunning to any extent. Now, may I know what they are doing with this Labour Code?
Adharkar: Firstly, My Lord ! Wherever the ESI Act is there, there will be no need for the Employees’ Compensation Act (formerly, Workmen’s Compensation Act, 1923). But, in this Code, the provisions of the Employees’ Compensation Act are retained in Part I (Sec. 61 to 75 ) and some of the very important provisions of the ESI Act, 1948 have been totally omitted. How can the Drafting Team call the draft Labour Code a process of ‘amalgamation’?
Lord: What are those provisions of the ESI Act omitted to be brought to the Labour Code?
Adharkar: Sec. 51-B to Sec. 51-E My Lord! They have totally omitted these benefits. They do not reply when asked who advised them to do so. This is a very serious conspiratorial measure agains the working population by the Drafting Team and the rulers.
Lord: I understand. Are other provisions okay?
Adharkar: No, My Lord! The Labour Code had reduced the quantum of compensation payable to the person who sustained Employment Injury. The Code assures only 50% as per the EC Act and not 90% as per the ESI Act. A scrutiny of Sec. 63 reveals this fact. This section is only the reiteration of the provision of the EC Act. The benefit provided by the ESI Act is not assured here through the Code. It has been left open-ended depending on the mercy of the rulers. Sec. 63 (1) (a) (b) which has the phrase “whichever is more” indicates that the Executive is at liberty to increase or decrease the rate of Dependant’s Benefit. The continuation of the present 90% of wages (roughly) as Dependants’ Benefit is not assured. How can people give approval to such a legislation My Lord!
Beveridge: Is it because the ESI Act does also have that provision only in the Rule and not in the Act?
Adharkar: Mr. Beveridge! When the ESI Act was enacted for the first time, the quantum of all these benefits were assured in the Act (as The First Schedule), before seeking the approval of the Parliament. Now, when the rulers want to replace the present ESI Act, they cannot play hide and seek with people. What is the difficulty for them in shifting the quantum of benefit of Dependants’ Benefit from the ESI (Central Rules) to the Code itself? More so, when they have shifted the quantum of contribution from Rule 51 of the ESI (Central) Rules ( a subordinate legislation) to the Labour Code (a primary legislation) directly?
Lord: Why do they do so?
Adharkar: The authorities do maintain a cunning silence in this regard, My Lord! They have not attached any Notes to the draft Labour Code explaining why they included something and excluded others. They do not show the draft ‘Statement of Objects and Reasons’ too. They cannot, therefore, be trusted, My Lord!. The rumour is that they might not provide Dependants Benefit equivalent to the present one in future, @ 90%, to facilitate entry of private players in the market of Social Security and enable them to make a lot of profit.
Lord: When the ESIC is paying the Dependants Benefit @90% does is suffer any loss?
Adharkar: No, My Lord ! ESIC was showing surplus consistently. A social security organisation must have such strong surplus. The funds were kept only in government securities.
Lord: Is such a surplus necessary?
Adharkar: Yes, My Lord ! Adequate surplus in an insurance against Anxiety, says the Noble Prize Winner Economist Paul Krugman. It is essential in the insurance field. The surplus in the ESIC was not a flab. Moreover, such a surplus got generated from the 1950s when the ESIC had Chapter VI, providing for Employers’ Special Contribution, collected from all over the nation from the employers who were not in the implemented area. Moreover, the ESIC was managing its funds best, My Lord ! This was appreciated by the newspaper Economic Times too in February 2003. The system of managing funds was improved in the subsequent four years, by collecting daily offer from various nationalised banks every afternoon and deposting the money with them in Savings Bank account, instead of Current Account. The method was marvellous My Lord!. But, these essential facts are either not understood by the elements which run down the ESIC or they pretend not to know that. Because, their motive in bringing the Labour Code is ulterior, My Lord!
Lord: I understand. When will the earthlings mature? What is the reason for the desperate efforts taken now to privatise social security in India in such a cunning manner?
Adharkar: My Lord, the ESI Corporation cannot give any corporate donations to the political parties. So, there is no real gain for the rulers to run the ESIC right. They, therefore, choose to run it down. There had been vicious campaign against the ESIC and the EPFO from 28.02.2015 onwards, when the Finance Minister presented his budget stating, in an arbitrary and unauthorised manner, that these organisations were holding the employees as hostages. When asked under the RTI Act, no Ministry could explain how such an allegation found a space in the Budget speech.
The agents of the money sharks are working over time since then to campaign against these organisations through numerous articles in various newspapers including the Hindustan Times and the Forbes. My Lord, Indian society is going the wrong way. The humanity is going to suffer a lot unless the mala fide designs of the politicians-businessmen-middlemen-bureaucrats nexus is exposed before the public. There are so many mischievous portions in the Labour Code, My Lord! They do not want to examine the disastrous consequence of similar steps taken in Peru and Chile. They are hell bent on obliging the money sharks who want to enter into the insurance field and loot the people who draw upto Rs. 21000 pm. That is the reason for this unseemly hurry in bringing out this Labour Code, in such a peremptory manner.
Lord: Yeah! Let us analyse them deeply tomorrow!
(Lord Yamadharma Raja rises up. The assembly is dissolved)
Images: Courtesy, Wikipedia
Note on the draft Labour Code submitted to the Secretaries of State Governments for their consideration before they attend the meeting convened by the Secretary, Ministry of Labour & Employment, Government of India on 02.05.2017 at 03.00 PM in New Delhi.
To download PDF file, please click on the following image:
1. The Ministry of Labour & Employment of the Government of India has proposed “to have a consultation Meeting” with the Secretaries of all the State Governments and Union Territories on 02.05.2017 in New Delhi. It has been mentioned in the letter No. Z -20023/13/2015-LRC dated 24.04.2017 of the MOL&E that this is a “consultation process for deliberations on the Code on Social Security & Welfare”. Every State Government has been invited to depute the Secretaries in charge of the four departments, viz., Labour, Health, Social Welfare and Woman & Child Development.
2. It becomes clear from the Ministry’s letter dated 24.04.2017 that this is the first time the draft Labour Code is officially taken to the knowledge of all the State Governments by the MOL&E. They have not been given time to consult the employers, employees, workers, legal experts, political leaders of their States. It is, practically, difficult for these Secretaries to go through the entire draft Labour Code personally and understand the ‘system’ that is proposed to be put in place. It is only fair that the States must be given time adequate enough to study, understand and arrive at their opinion about the issues involved. But, the issue is hurried through by the MOL&E for inexplicable reasons. Speed and surprise are anti-thesis to democracy when discussing the welfare measures of the people of the nation. Continue reading
Applications were sent on 04.04.2017 and 05.04.2017 under Sec. 6 of the RTI Act, 2005 seeking certain information pertaining to the Labour Code.
The following was requested for, in the application dated 04.04.2017:
- “Kindly supply the relevant pages of the ‘filenoting’ / ‘office note’ / ‘report of the committee of experts’ / ‘report of the of officers’ in which such an explanation justifying their suggestion to drop the word ‘substantial’ in Sec. 94 in ‘Part L’ of the Code is found recorded.”
Again, the following was requested for, in the application dated 05.04.2017:
- “Kindly supply the copies of the format of the proposed License (containing the Terms and conditions imposed by the Government on the agencies) referred to in Sec. 88 and 89 of the said Draft Labour Code on Social Security & Welfare;
- Kindly supply the copies of the proposesd Regulations and the Schemes referred to in Sec. 24 of the said Draft Labour Code on Social Security & Welfare”.
It was clearly mentioned in the Appendix to the Application dated 05.04.2017 as under:
“When, the present piece of legislation, the proposed Labour Code, is intended to replace the existing social security machinery, people become apprehensive and want to know whether they stand to gain or lose by that new system.
2. The Executive, therefore, cannot bring in a truncated version of the proposed system in the form of Code and ask the MPs to vote. But, that, exactly, is what the bureaucracy has, exactly, done through this Draft Labour Code. Sec. 24.5 of the Code enumerates the nomenclature of the benefits that would be made available to the workforce. But, the quantum of benefits and the nature of machinery through which such benefits would be provided have not been made known. These issues have been kept reserved for the Executive to make Subordinate Legislations later.
3. But, in all probability, the draft subordinate legislations, (a) the Rules, (b) the Regulations including the termns of conditions of license and (c) the Schemes would, already, have been prepared and kept in the Ministry. The non-publication of those drafts along with the Draft Code, for public debate gives the bona fide impression that the forces which are behind this move, want to hide many vital aspects of the proposed social security system away from public knowledge until they get the Code passed by the Parliament and acquire power to do whatever they want through Subordinate Legislation. Or, i.e., if they have not yet prepared those draft Rules, draft Regulations, draft Schemes and draft licences, it would imply that these forces want to destabilise the present social security structure and bring in something which is not known even to themselves.”
Our apprehensions have become true.
The entire draft Labour Code is the handy work of some bureaucrats or middlemen who do not know the niceties and intricacies of not only the subject matter of the Code but also the technicalities of legislative drafting. What is more, they do not know what their ultimate aim is but have attempted to write something as Labour Code and create unnecessary social unrest in the nation.
The reply received from the Ministry in their letter No. M. 13014 / 01/ 2017 – LRC dated 25.04.2017 testifies to this fact.
This is not the stage appropriate and proper for a Ministry to call for the opinion of the public. Nor it is a correct stage to call for the meeting of the Secretaries of all the State Governments on 02.-5.2017.
The Government of India must, therefore, withdraw this premature draft Labour code immediately.
Labour Code: Whittling down accidents covered by the ESI Act, 1948 ! Providing subsidy to employers !!
The (CPIO- Labour Law Reforms),
Ministry of Labour & Employment, New Delhi – 110001
|Sub:||Application under RTI Act – Draft Labour Code on Social Security & Welfare – details of the committee that drafted the Code and the omissions in Sec. 61 and inclusions in Sec. 22 – requested.|
|Ref:||Memo No. No. Z-13025/ 13 /2015-LRC dated 16.03.2017 of the Ministry of Labour & Employment.|
I invite your kind attention to the reference cited in which the Draft Labour Code on Social Security & Welfare was put on public domain on 16.03.2017, in the website of the Ministry of Labour and Employment, Government of India, New Delhi and request you to please furnish the following information under Sec. 6 of the Right to Information Act, 2005:
- Kindly intimate the designations of the officials who were entrusted with the work of preparation of the Draft Labour Code which has been communicated to the public by the Ministry of Labour & Employment, through the abovementioned letter dated 16.03.2017 (I do not want the names of those officials, if that information is considered to be a confidential one, while generally it is not so).
- Kindly intimate the names of the employers’ representatives or consultants who were roped in for preparing the said Code.
- Kindly intimate the names of the employees’ representatives who were roped in for preparing the said Code.
- Kindly supply the copy of the filenoting or any other record that would contain the justification (recorded by those persons who were entrusted with the work of preparing the aforesaid Draft Labour Code) for omission altogether, from the proposed Labour Code, of the provisions contained in 51-B, 51-C, 51-D and 51-E of the ESI Act, 1948, while Sec. 51-A of the ESI Act, 1948 has been inserted as Sec. 61.3 in the Code [Sec. 51-B deals with Accidents happening while acting in breach of regulations, etc. Sec. 51-C deals with Accidents happening while travelling in employer’s transport. Sec. 51-D deals with accidents happening while meeting emergency].
- Kinldy supply the copies of the filenotings or any other record of those who were involved in the process of preparing the said Code justifying the inclusion of phrases for providing “subsidy” to “the employer” under Sec. 22.6 (b) from the Welfare Funds by the State Board and to provide for “defraying the cost” of “provision of cost of transportation to and from work” for the employees under Sec. 22.6 (d) (vi).
I send herewith Postal Order for Rs. 10 being the fee payable under the RTI Act, drawn in favour of the PAO(MS), Ministry of Labour & Employment, New Delhi.
“In short, there are myriad things you can to challenge poor-bashing. Every time you do it, you’re working on cutting edge of a larger movement that’s struggling for justice for people who are poor”
– Jean Swanson – Page 184 –
Poor bashing: The politics of exclusion
First World War took place, because of the ignorance of the rulers of various nations of the world of the importance of taking care of the legitimate needs of the working population around the world. The political rulers went after money-bags and ran the nations to suit the requirements of the businessmen, obviously for the quid pro quo. The gap between the rich and poor widened so greatly that the simmering anger provided the base for social and political unrest.
The result was the World War I. Nothing further is needed to testify to this basic reason for the WW I, than the very Charter of the International Labour Organisation (The preamble of the Constitution of the ILO) founded in 1919.
The Charter declares to the world, that “universal and lasting peace can be established only if it is based upon social justice”. It reiterates that “the peace and harmony of the world are imperilled when the conditions of labour exist involving such injustice, hardship and privation to large numbers of people”. Proper labour laws alone would secure the “permanent peace of the world”, as identified by the ILO.
1% cornered 53% nation’s wealth
But, the Indian politicians do not care. They are unabashedly placing the entire government machinery at the feet of the ultra-rich businessmen. These politicians do not care to explain to the people, nor do they care to ponder over for themselves, how and why the top 1% of the richest own, as on 14.10.2015, 53% of the country’s wealth. These politicians do not also care how the share of “the poorer half of the population” in the nation’s wealth declined to 4.1% from 5.3% during 2000 and 2015.
The Indian politicians are controlled and managed (or, to put it better, employed) by the ultra-rich businessmen to do their biddings. And, the politicians are happy to be so, happy to remain the slaves of those masters in business. Corporate financing is all about the eagerness of the politicians to be in politics in India. We do not see David Cameroons shifting their own personal effects, after being in power as Prime Minister. Our politicians do not care for the pains of the poor.
These politicians believe that the masses do not count for anything and that they can fool the masses, at any time, and poll their votes. And, in order to aid such politicians in fooling the people, large business firms have ventured into the media business too, even through “hostile take-overs” of visual and print media. These ultra-rich businessmen use their media-power to manipulate public opinion to promote the image of their slaves in politics. The politicians and the b
usinessmen are happy with this kind of reciprocal arrangement between themselves. And that is the cause of all the troubles of the poor. But, the sufferings of the poor is immaterial for these two players who go about their single-minded pursuit only of profit and money for themselves.
In the aftermath of the World War II, Ernest Bevin, the UK Labour Minister stressed, while addressing businessmen, on the need for providing basic economic security to create fairer conditions of living for the working population also. “If profit can be the only motive, the natural corollary is economic disorder, and economic disorder will bring you back to the same position you are in now, ever recurring, and future generations will again pay, in the same form or another, the bitter price we are paying now…” he said.
In the year 1944, the in its 26th session, the ILO which met at Philadelphia had examined the issue and reiterated the same fact. The ILO warned the entire world against exploitation of the poor by the rich.
The Declaration of Philadelphia had also said that the principles set forth in that declaration was “fully applicable to all people everywhere” and its observance or otherwise in any nation is “a matter of concern to the whole civilised world”.
The present Labour Code brought out by the Government of India is totally loaded against the poor. It, simply, treats labour as a commodity and helps only the ultra-rich to exploit whatever money the poor do have.
Some of the apparent defects of the Code are:
1. It drastically reduces the disablement benefits.
2. It confers unfettered power on the Executive to decide the quantum of Sickness Benefits.
3. The Extended Medical Benefit and Extended Sickness Benefit, for which the ESIC is famous for, has been removed from the Social Security scene in toto. ESIC pays While the ESIC gives medical benefit and pays cash benefit too, for about two years and 309 days respectively after the contribution ceases to be payable for the insured persons suffering from various long term diseases as per Reg. 103-A, the proposed Code is totally silent on the issue.
4. Representation of the employers and employees in the decision-making bodies has been so reduced that it makes a mockery of the Council which is projected to be a tripartite body.
5. In the name of extending the facility to homeworkers, the Code makes every householder an employer, who will be subjected to inspection and also prosecution.
6. Enabling politicians in power to exempt almost any and every entity from coverage, by removing the word “substantially” from Sec. 94 of the Code.
7. Enabling the politicians in power to prescribe for themselves the power to impose penalty on the employers.
8. Entertaining notions to hand over the social security arena to private money bags and attempting to reduce the benefits payable and paid to the workforce by the ESI Act, at present.
9. etc., etc.,
“India performed poorly in social security” – ILO
Already, the ILO has, in November 2010, had blasted India for its notorious informal labour practices. “India has performed poorly in providing social security protection to its people until recently with ‘very high vulnerability’ to poverty and informal labour practices in the world, according to a report released by the International Labour Office (ILO) today” Times of India – 16.11.2010. In its first comprehensive ‘World Social Security Report’, the ILO has suggested that India has not done enough in the arena of social security protection, which is reckoned as the “human face of globalisation, in line with its fiscal status”.
In fact, the only thing that the proposed Labour Code can be made use of is to use it to demonstrate before the world how a Welfare Law should not be made.
ESI Act, gives effect to Universal Declaration of Human Rights
Art. 22 of the Universal Declaration of Human Rights says, “Everyone, as a member of society, has the right to social security”. The High Court of Madras has said, “the object of the (ESI) Act is … 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 same court has said of the ESI Act, that “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).
ESI Act, for a new social order with corrective and distributive justice.
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. 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 subserve 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”.
Let the rulers heed to Art. 41 and Art. 42
Art. 41 of the Constitution of India says that “The State shall, within the limits of its economic capacity and development, make effective provision for securing the right ….. to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want”. The Constitution thus, gives direction to the State that in cases of Sickness, disablement and in other cases of undeserved want, the State is to provide “public assistance”. The State cannot, therefore, make provisions for “private assistance” and absolve itself of its Constitutional responsibility.
A BBC study revealed that inequality is the basis of so many social problems. ESIC is an effective instrument in the hands of governments in India to prevent the problems that arise due to inequality. Let the rulers listen to the sage advice of Prof. Adharkar, the Father of Social Security in India, and follow the 8 Fundamental Principles laid down by him and fulfil his 4 Assumptions to make Social Security in India real and really beneficial..
The CPIO- (Labour Law Reforms) RTI,
Ministry of Labour & Employment,
Room No. 14, Shram Shakti Bhavan,
New Delhi – 110001
|Sub:||Application under Sec. 6 of the RTI Act – Omission of the word ‘Substantial’ in Sec. 94.1 (h) of Draft Labour Code on Social Security & Welfare – information – requested.|
|Ref:||Memo No. No. Z-13025/ 13 /2015-LRC dated 16.03.2017|
I have to state that Sec. 94. 1 (h) of the Draft Labour Code made public on 16.03.2017, as per the reference cited, shows that the authorities who prepared the draft Code had taken a conscious, deliberate and calculated decision to drop the word “substantially” before the word “similar” appearing therein.
- This is in sharp contrast to the existing conditions imposed on the employers who seek exemption from coverage under the ESI Act, as could be seen from the proviso to Sec. 87 of the ESI Act, 1948, which is reproduced below:
“Provided that such exemptions may be granted only if the employees’ in such factories or establishments are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act.”
- 90 of the ESI Act, which also deals with the concept of Exemptions, contains the phrase “substantially” similar”. Besides, the proviso to Sec.1(4) which deals with the exemption of the factories and establishments belonging to or under the control of the Government, also insists of the condition of the benefits being “substantially” similar or superior.
- The term “substantial” can have a qualitative meaning and be defined as “important” or “essential”, and can have a quantitative meaning and be defined as “considerable in quantity” or “significantly great” in amount. This word precludes invoking the ‘de minimis’ (Page 812 – Concise Law Dictionary – Wadhwa Publication).
- Yet, such an important word has, consciously, been left out in Sec. 94 of the Draft Labour Code in ‘Part L’ which deals with exemption. There must, therefore, have been strong justification recorded in writing by the officers or the committee of experts who had drafted this Sec. 94 of the Draft Labour Code concerned.
- I, therefore, request you to kindly supply the following information under Sec. 6 of the Right to Information Act, 2005:
Kindly supply the relevant pages of the ‘filenoting’ / ‘office note’ / ‘report of the committee of experts’ / ‘report of the of officers’ in which such an explanation justifying their suggestion to drop the word ‘substantial’ in Sec. 94 in ‘Part L’ of the Code is found recorded.
Quantum of Dependant’s Benefit has been drastically reduced in the Labour Code, when compared with what is available now under the ESI Act, 1948. [even after making allowances due to the definition of the term ‘benefit wage’ under Sec.2.12 of the Code with reference to the ‘Standard Benefit Rate’ as per Rule 2 (7-A) of the ESI (Central) Rules, 1950.] Likewise, the Permanent Disablement Benefit and Temporary Disablement Benefit too.
This is unfair. This becomes unlawful too, when the solemn assurance given to the persons already covered under the ESI Act is snatched away and only the assurance of reduced benefit is attempted to be given, and that too, unnecessarily, through the present Labour Code, in the event of death of the employees due to employment injury.
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