Download Bonded Labor Abolition and Labor Rights Protection in India and more Study notes Law in PDF only on Docsity!
Abolition of Bonded Labour and
Protection of Labour Rights in
India
Constitutional Provisions for Social and
Labour Welfare
Evolution of Labour Laws
Early labour legislations were enacted to safeguard the interests of employers, governed by the doctrine of laissez-faire. Modern labour legislations aim to protect workers against exploitation by employers, with the advent of the doctrine of the welfare state. The theory of 'hire and fire' and 'supply and demand' under the old doctrine of laissez-faire no longer hold good. The growth of industrial jurisprudence is evident from the increase in labour and industrial legislation, as well as the large number of industrial law matters decided by the Supreme Court and High Courts.
Constitutional Provisions
The Indian Constitution, adopted in 1949, presents the aspirations of the weaker sections of society, especially the working classes. The Constitution has conferred innumerable rights for the protection of labour, as the national freedom struggle and the struggle of the working class emancipation coincided. The Constitution is the supreme law of the nation, and all legislations draw their inspiration from it. The Preamble, Fundamental Rights, and Directive Principles of State Policy embody the fundamental principles that guide all legislations, including labour legislations.
Fundamental Rights
Article 14 commands the State to treat any person equally before the law. Article 19(1)(c) grants citizens the right to form associations or unions. Article 21 promises the protection of life and personal liberty. Article 23 prohibits forced labour. Article 24 prohibits the employment of children below the age of fourteen years.
Directive Principles of State Policy
Article 39(a) provides that the State shall secure to its citizens an adequate means of livelihood.
Article 39A provides for equal opportunities for access to justice. Article 41 secures the right to work and education within the limits of the State's economic capacity. Article 42 instructs the State to make provisions for securing just and humane conditions of work and for maternity relief. Article 43 orders the State to secure a living wage, decent conditions of work, and social and cultural opportunities for all workers. Article 43A provides for the participation of workers in the management of industries through legislation.
Bonded Labour
Definition and International Conventions
Bonded labour is defined in the Bonded Labour System (Abolition) Act, 1976, as any labour or service rendered under the bonded labour system. A bonded labourer is defined as a labourer who incurs, has, or is presumed to have, incurred a bonded debt. Bonded labour has been addressed as a prohibited practice in several international conventions: ILO's Forced Labour Convention, 1930 (No. 29) Universal Declaration of Human Rights UN Supplementary Convention on the Abolition of Slavery (1956) ILO Report on Stopping Forced Labour (2001)
Constitutional Provisions
Article 21 of the Indian Constitution secures the right to life and right to live with human dignity, which is violated by the practice of bonded labour. Article 23 of the Constitution expressly prohibits forced labour, including the practice of bonded labour and Begar. Article 39 of the Constitution directs the State to secure the right to an adequate livelihood and prevent citizens from being forced into avocations unsuited to them. Article 42 of the Constitution directs the State to make provisions for securing just and humane conditions of work. Article 43 of the Constitution directs the State to secure a living wage, decent conditions of work, and social and cultural opportunities for all workers.
The Indian judiciary has played a significant role in the implementation of the Bonded Labour System (Abolition) Act, 1976, and has tried to expand the scope of forced labour and protect the rights of citizens.
Abolition of Bonded Labour System
The Bonded Labour System (Abolition) Act, 1976 was enacted to give effect to the constitutional provisions against bonded labour. The key provisions of the Act are:
Abolition of Bonded Labour System : Section 4 of the Act abolishes the bonded labour system, and every bonded labourer is freed and discharged from any obligation to render bonded labour.
Void Agreements and Customs : Section 5 declares any custom, tradition, contract, or agreement that requires a person to work as a bonded labourer as void and inoperative.
Extinguishment of Bonded Debt : Section 6 extinguishes every obligation of a bonded labourer to repay any bonded debt, and all decrees or orders for the recovery of such debt are deemed to have been fully satisfied.
Restoration of Property : Section 7 provides for the restoration of any property of a bonded labourer that was under any mortgage, charge, lien, or other encumbrance in connection with the bonded debt.
Protection from Eviction : Section 8 prohibits the eviction of a freed bonded labourer from any homestead or other residential premises occupied as part of the consideration for the bonded labour.
Authorities under the Bonded Labour Act
The Bonded Labour Act empowers the state governments to constitute Vigilance Committees at the district and sub-divisional levels. These committees are responsible for the identification, release, and rehabilitation of bonded labourers, as well as the monitoring of the implementation of the Act.
The composition and functions of the Vigilance Committees are outlined in Sections 13 and 14 of the Act.
Functions of Vigilance Committees
(1) The functions of each Vigilance Committee shall be:
a. To advise the District Magistrate or any officer authorised by him as to the efforts made, and action taken, to ensure that the provisions of this Act or of any rule made thereunder are properly implemented.
b. To provide for the economic and social rehabilitation of the freed bonded labourers.
c. To coordinate the functions of rural banks and cooperative societies with a view to analysing adequate credit to the freed bonded labourer.
d. To keep an eye on the number of offences of which cognizance has been taken under this Act.
e. To make a survey as to whether there is any offence of which cognizance ought to be taken under this Act.
f. To defend any suit instituted against a freed bonded labourer or a member of his family or any other person dependent on him for the recovery of the whole or part of any bonded debt or any other debt which is claimed by such person to be bonded debt.
(2) A Vigilance Committee may authorise one of its
members to defend a suit against a freed bonded labourer,
and the member so authorised shall be deemed, for the
purpose of such suit, to be the authorised agent of the
freed bonded labourer.
Burden of Proof
As per Section 15, if any debt is claimed by a bonded labourer, or a Vigilance Committee, to be a bonded debt, the burden of proof that such debt is not a bonded debt shall lie on the creditor.
Equal Pay for Equal Work Act
Salient Features of the Act:
This is a central act and is applicable to the whole of India. It restricts the employer from creating terms and conditions of work in a contract of services or work of labour that are contrary to the doctrine of equal pay for equal work and the provisions of the Equal Remuneration Act. The act applies to all workers, even if engaged for a day or a few days. If the employer does not comply with the act, they will be liable to pay a fine, imprisonment, or both, as per Section 10 of the act. Any settlement or any agreement with the employee that is harmful to the employee is not allowed.
Duties of the Employer:
Duty to pay equal remuneration to men and women workers for the same work or work of a similar nature. No discrimination to be made while recruiting men and women workers, unless that particular employment of women or men is restricted or prohibited by any statute. Duty to maintain registers and other documents in relation to the workers employed by them in the prescribed manner.
Features of Migrant Labor
The basic features of the migrant labor force in India include:
They are generally unskilled, unorganized, uneducated, and have low or no bargaining power. They belong to the lowest strata of society and are in a socially or economically disadvantaged position. When the male worker migrates with his family, he is more prone to exploitation - economic, social, and otherwise. Their children often become part of the child labor or even bonded labor force, without any sympathetic consideration for their tender age and development.
Hardships and Problems Faced by Migrant Labor
Migrant laborers face numerous hardships and problems, including:
Traveling with or without their families and living in very hard and difficult conditions. Facing a "hire and fire" strategy, working long hours in harsh and unhygienic conditions. Lack of basic amenities like shelters, medical facilities, drinking water, and welfare funds. Low wages, with contractors making deductions from their wages and discriminatory treatment by employers. Accidental injuries with inadequate medical assistance or compensation. Lack of fuel, sanitation, and job security. Harassment, abuse, theft, forcible eviction or demolition of their dwellings by urban authorities or police. Sexual exploitation of women by masons, contractors, and other powerful persons. Lack of awareness about their rights and the available welfare laws and government schemes.
Registration of Establishments Employing Inter-State
Migrant Workmen
The Interstate Migrant Workmen Act requires the registration of establishments employing inter-state migrant workmen:
The establishment proposing to employ inter-state migrant workmen must be registered with the registering officers appointed by the Central or State Governments. The registration of the principal employer is compulsory if the inter- state migrant workers are employed or intended to be employed in the establishment. The registering officer shall register the establishment and issue a certificate of registration within one month of receiving the application, if the application is complete.
The registering officer has the power to revoke or suspend the registration certificate under certain conditions, after providing the principal employer an opportunity to be heard. The Act prohibits the principal employer from employing inter-state migrant workmen without obtaining a certificate of registration, but does not prohibit employment if the registration application is pending.
Sexual Harassment of Women at the Workplace
Sexual harassment is a significant problem faced by women in various sectors of life, including the workplace:
The definition of sexual harassment includes any unwanted or inappropriate sexual attention, such as touching, comments, or gestures. Sexual harassment is often about power rather than physical attraction, and it is more common when one person is in a position of power over the other. Many sexual harassment incidents go unreported due to the fear of consequences, such as job loss, demotion, or social stigma. Lack of knowledge about what constitutes sexual harassment also contributes to the underreporting of such incidents. Several countries have developed laws and policies to protect women workers from sexual harassment, but the problem persists.
The Vishaka Guidelines
The Vishaka v. State of Rajasthan (1997) judgment by the Supreme Court of India was a landmark decision in addressing the issue of sexual harassment at the workplace:
The case was filed by Vishaka and other women's groups against the State of Rajasthan and the Union of India, based on the gang rape of a rural-level change agent, Bhanwari Devi. The Supreme Court recognized sexual harassment as a violation of women's fundamental right to equality and dignity, and created legally binding guidelines to address the issue. The guidelines defined sexual harassment, shifted accountability from individuals to institutions, prioritized prevention, and provided an innovative redressal mechanism in the form of Complaints Committees. The Supreme Court's guidelines were later incorporated into the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to provide a statutory basis for the Vishaka Guidelines and to ensure their effective implementation.
Internal Complaints Committee (ICC)
The Act mandates the constitution of an Internal Complaints Committee (ICC) in every workplace with 10 or more employees. The ICC must be headed by a senior-level woman employee and must have at least 50% women members. It must also include a member from an NGO or association committed to the cause of women.
Local Complaints Committee (LCC)
The Act also provides for the constitution of a Local Complaints Committee (LCC) in every district to receive complaints of sexual harassment from establishments where the ICC has not been constituted due to having less than 10 employees or if the complaint is against the employer himself.
Conclusion
India's innovative history in tackling workplace sexual harassment, beginning with the Vishaka Guidelines and subsequent legislation, has given critical visibility to the issue. Workplaces must now own their responsibility within this context and ensure that women can work in safe and secure spaces.
Theories of Wages
Marxian Theory of Wages
According to Karl Marx, the payment received by workers is at a subsistence level, which is less than the time and labor required to produce the items. Marx is well-known for advocating on behalf of labor.
Marginal Productivity Theory of Wages
According to this theory, propounded by Phillips Henry Wicksteed (England) and John Bates Clark of the U.S.A., wages are determined based on the production contributed by the last or marginal worker.
Bargaining Theory of Wages
Proposed by John Davidson, this theory states that the fixation of wages depends on the bargaining power of workers/trade unions and employers. If
workers are stronger in the bargaining process, wages tend to be higher, and vice versa.
Behavioural Theories of Wages
Developed by behavioural scientists based on research studies and action programs, these theories consider elements like employee acceptance of wage levels, the prevalent internal wage structure, and the role of wages and salaries as motivators.
Types of Wages
Living Wages
Living wages are sufficient to provide for the bare necessities and certain amenities for the employee and their family, according to their social status. Article 43 of the Indian Constitution states that the state shall endeavor to secure a living wage for all workers.
Minimum Wages
Minimum wages are the minimum payment to a worker to provide for their basic needs and maintain their working efficiency. Some scholars argue that minimum wages should also provide for minimum education, medical facilities, and other amenities.
Fair Wages
Fair wages are more than minimum wages and are determined after considering factors such as wages paid for similar work in other trades and industries, labor productivity, and the industry's paying capacity. The lower limit of fair wages is the minimum wage, and the upper limit is the industry's capacity to pay.
Norms for Fixation of Minimum Wages
The 15th Indian Labour Conference recommended the following norms for calculating minimum wages:
A family size of three consumption units for one earner. Minimum food requirements based on Dr. Aykroyd's prescription of 2,700 calories per day. Clothing requirements of 72 yards per family per annum. Housing rent based on the Industrial Housing Scheme. 20% of the minimum wage for fuel, lighting, and other miscellaneous expenses.
The Supreme Court has also directed that 25% of the total minimum wage should be considered for children's education, medical requirements, minimum recreation, and provisions for old age and marriage.
Maximum Bonus
Where the allocable surplus exceeds the amount of minimum bonus payable, the employer shall pay bonus which shall be an amount in proportion to the salary or wage earned by the employee during the accounting year, subject to a maximum of twenty per cent of such salary or wage.
Gratuity
Determination of Gratuity
A person eligible for gratuity shall send a written application to the employer, within such time and in such form as may be prescribed, for payment of such gratuity. The employer shall determine the amount of gratuity and give notice in writing to the person to whom the gratuity is payable and also to the controlling authority. The employer shall arrange to pay the amount of gratuity within thirty days from the date it becomes payable. If the amount of gratuity is not paid within the prescribed period, the employer shall pay simple interest at a rate notified by the Central Government. If there is any dispute regarding the amount of gratuity, the employer shall deposit the amount with the controlling authority, who shall determine the matter after due inquiry.
Recovery of Gratuity
If the amount of gratuity is not paid by the employer within the prescribed time, the controlling authority shall, on an application made by the aggrieved person, issue a certificate for the amount to the Collector, who shall recover the same, together with compound interest, as arrears of land revenue.
Penalties
Whoever knowingly makes or causes to be made any false statement or false representation to avoid payment of gratuity shall be punishable with imprisonment or fine, or both. An employer who contravenes or defaults in complying with the provisions of the Act shall be punishable with imprisonment or fine, or both.
Child Labour
Definition of Child
A 'child' means a person who has not completed his fourteenth year of age, as defined under the Child Labour Act, 1986.
Constitutional Provisions
The Constitution of India provides several articles for the protection and welfare of children:
Article 15(3) empowers the State to make special provisions for children. Article 21 guarantees the right to life and personal liberty, which includes the right to live with dignity and be free from exploitation. Article 23 prohibits traffic in human beings and forced labour, including child labour. Article 24 prohibits the employment of children below the age of 14 years in factories, mines, or any other hazardous employment. Article 39(e) directs the State to ensure that the health and strength of children are not abused and that they are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 45 provides for free and compulsory education for all children until they complete the age of 14 years.
The Supreme Court has also held that 'hazardous employment' includes construction work, match boxes, and fireworks, and no child below the age of 14 years can be employed in such activities.
Rights of Children under National Laws
Constitutional Provisions
The Constitution of India provides several rights and protections for children:
No child below the age of 14 years shall be employed in any factory or mine or engaged in any other hazardous work.
The State shall, in particular, direct its policy towards securing that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
Children are to be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and childhood and youth are to be protected against exploitation and against moral and material abandonment.
The State shall endeavor to provide, within a period of ten years from the commencement of the Constitution, free and compulsory education for all children until they complete the age of fourteen years.
The State shall provide free and compulsory education to all children between the ages of 6 to 14 years in such manner as the State may, by law, determine.
Penalties for Employing Child Labor
Section 14 of the Act prescribes penalties for employing children in contravention of the provisions:
Imprisonment for 3 months to 1 year and/or a fine of ₹10,000 to ₹20,000 for the first offense. Imprisonment for 6 months to 2 years for subsequent offenses. Simple imprisonment up to 1 month and/or a fine up to ₹10,000 for other violations of the Act.
Contract Labor and Registration of Establishments
The Contract Labour (Regulation and Abolition) Act, 1970 regulates the employment of contract labor in certain establishments. Key provisions include:
Definition of Contract Labor
The Act defines "contract labor" as a workman hired in or in connection with the work of an establishment by or through a contractor.
Registration of Establishments and Licensing of Contractors
Sections 7 and 12 require the registration of establishments and the licensing of contractors employing contract labor. Failure to obtain a license is a criminal offense.
Revocation of Registration
Section 8 empowers the registering officer to revoke the registration of an establishment in certain cases, such as misrepresentation or suppression of material facts.
Effect of Nonregistration
Prohibition of Employment of Contract Labour
No principal employer of an establishment, to which this Act applies, shall employ contract labour in the establishment if: The establishment is required to be registered under Section 7 but has not been registered within the time fixed for the purpose. The registration of the establishment has been revoked under Section
Payment of Wages to Contract Labourers
Every contractor is responsible for payment of wages to each worker employed by them as contract labour.
To ensure regular payment of minimum wages, the wages are to be paid in the presence of the authorized representative of the principal employer, who certifies that the stipulated wages have been paid. If the contractor fails to make payment of wages within the prescribed period or makes short payment, the principal employer shall be liable to make payment of wages in full or the unpaid balance due, and can recover the amount from the contractor. The principal employer is liable to compensate underpaid contract labour. Contract labourers performing the same or similar work as regular workmen are entitled to the same wages and service conditions as regular workmen.
Landmark Cases on Payment of Wages
In Senior Regional Manager, Food Corporation of India, Calcutta v. Tulsi Das Bauri, the Supreme Court held that the principal employer is statutorily responsible to ensure payment of wages, including arrears of wages, in case of default by the contractor. In B.H.E.L. Workers' Association Haridwar and Ors. v. Union of India, the Court held that no particular distinction should be made between contract labourers and directly employed workmen, and contract labourers are entitled to the same wages, holidays, hours of work, and conditions of service.
Challenges in Implementation
Despite the provisions, there are instances of workers earning less than the minimum wage, especially in small private firms that employ uneducated migrant labourers from rural and northeastern regions. Lack of awareness among migrant labourers leads to their exploitation.
Prohibition of Employment of Women under
the Maternity Benefit Act, 1961
Restrictions on Employment of Women
No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or miscarriage. No pregnant woman shall be required by her employer to do any work of arduous nature, involving long hours of standing, or likely to interfere with her pregnancy or the normal development of the foetus, during the one month immediately preceding the six weeks before the date of her expected delivery.
Maternity Leave and Benefits
Every woman is entitled to, and her employer is liable for, the payment of maternity benefits at the rate of the average daily wage for the
Restructuring Economies and Challenges of
Globalization
Weakening Capacity of Governments to Regulate Labour
Markets
In the present phase of globalization, it has become imperative for economies to restructure in order to remain competitive. The capacity of governments to regulate labour markets is weakening due to heightened international economic competition. This has led to a rise in the informal sector, and trade unions have been adversely affected. As a result, the bargaining position of workers is decreasing.
Holistic and Long-term Framework to Address
Globalization Challenges
What is required is a holistic and long-term framework to cope with the challenges posed by globalization. This framework should address the various issues arising from the changing economic landscape, such as the weakening of government regulation, the rise of the informal sector, and the declining bargaining power of workers.
Duties of Employers under the Karnataka Shop &
Establishment Act
The Karnataka Shop & Establishment Act defines an "establishment" as a shop or a commercial establishment. The Act outlines the duties of employers, including:
Employment and Regulation
Issuing appointment orders in the prescribed form Maintaining daily employee attendance records Providing mandatory weekly holidays and paid leave Ensuring that the working hours do not exceed the prescribed limits
Records Management
Maintaining various prescribed forms for establishment registration, leave records, and attendance
Submission of Annual Report
Submitting an annual report by the end of January each year
Approaching Authorities for Bonded Labour Issues
According to the Act, no civil court has jurisdiction over matters related to the Act. Aggrieved persons or their representatives can approach the District Magistrate, who is the chairman of the Vigilance Committee, or the Sub-Divisional Magistrate for assistance. The Act provides for the immediate release of bonded labourers, the extinguishment of their debt liability, and their rehabilitation with a grant of Rs. 20,000.
Liability of Employers under the Equal Remuneration Act,
The Equal Remuneration Act, 1976 prohibits employers from discriminating against men and women workers in terms of remuneration for the same or similar work. Employers who violate the provisions of the Act are liable for punishment, including simple imprisonment and/or fines.
Doctrine of 'Equal Pay for Equal Work'
The doctrine of 'equal pay for equal work' is a constitutional right, not a fundamental right. The Equal Remuneration Act, 1976 was enacted to comply with the Directive Principles of State Policy under the Constitution. The Act ensures that adequate remuneration is provided to employees, regardless of their physical strength, and aims to establish a just society by removing the scope for social and economic injustice based on sex.
Licensing of Contractors under the Interstate Migrant
Workmen Act
The Interstate Migrant Workmen Act requires contractors who propose to recruit or employ inter-state migrant workmen to obtain a license from the specified authority in both the home state and the host state. The license may contain terms and conditions related to the employment of the workmen, including remuneration, working hours, and essential amenities.
Sexual Harassment under the IPC and the Prevention of
Workplace Sexual Harassment Act
The Prevention of Workplace Sexual Harassment Act, 2013 defines sexual harassment and outlines the duties of employers in preventing and addressing such incidents. The Indian Penal Code, 1860 also defines sexual harassment and related offences, and prescribes punishments for the same.
Duties of Employers under the Sexual Harassment Act,
The Act imposes various duties on employers, including: - Providing a safe working environment - Displaying the penal consequences of sexual harassment - Organizing workshops and awareness programs - Ensuring the attendance and cooperation of the respondent and witnesses in the
