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Workers – Not To Be Toyed With ! – By Mukesh Jhangiani

                                                                                                            December 01, ‎2011

Labour law concerns the inequality of bargaini...

Labour law concerns the inequality of bargaining power between employers and workers (Photo: Wikipedia)

Workers – Not To Be Toyed With !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – A retiring High Court Chief Justice is paid a High Court Judge’s pension. The mistake is rectified– but not before a 15 year court battle.

An Indian Institute of Technology professor invokes his Right to Information– to know why his gratuity is withheld.

After a Japanese executive kicks a worker and tosses the turban of another one, 3,000 employees at a Gurgaon plant form a union– prompting dismissals. Protest brings brutal thrashing from Haryana police in full view of news cameras.

Fired en masse, 362 union-led newspaper employees spend 20 months in Delhi High Court without relief– only to start afresh before a labour tribunal.

Tens of thousands of farmers persuaded to borrow for modern tools, chemicals and seed incur a crop of debt they cannot cope with– and end their lives.

Hired on merit, a scheduled tribe teacher harassed at work goes to the Central Administrative Tribunal, the Delhi High Court and the Supreme Court– her battle and hounding cut short by her death in the premature delivery of a stillborn.

Those are some glimpses of what India’s so-called strong labour laws are doing for– and to– some of its officially counted 400 million workforce Prime Minister Manmohan Singh calls ‘toiling masses’.

Labour and Employment Ministry officials say India has 154 labour laws to ensure welfare of roughly 30 million organised workers and 370 million unorganised workers, including some 250 million farmers and farm hands.

Set up 36 years ago to research labour issues, V V Giri National Labour Institute has yet to produce a comprehensive study of workplace disputes, their causes and outcomes– that might have shown the way to reform.

As in instances cited at the outset, those guilty of making life miserable for some of India’s workmen and women seldom suffer personal consequences under the law.

That, experts acknowledge, defeats right there a key purpose of any legal system– to deter crime by instilling the fear of law in potential offenders.

“Where we fail is in punishing our crooks or offenders,” says former Calcutta High Court Chief Justice D S Tewatia, stressing the urgency of reforms to remedy the situation.

Knowing, for instance, that the worst consequence of denying employees’ wages is having to pay after 10 or 15 years, employers may take such recourse capriciously at the slightest pretext or even without any.

Quite unlike elsewhere in the civilised world, employers in India do not face jail or hefty punitive damages that may make them behave.

In the United States, for instance, former Enron chief executive Jeffrey Skilling was given more than 24 years in prison for fraud and conspiracy involving more than US40 billion dollars debt, thousands of lost livelihoods and duped clients.

Before sentencing, an outraged Enron employee of 17 years, Kevin Hyatt, had asked the judge to ‘send a message’ to other corporate executives by giving Skilling the maximum sentence.

About labour legislation in India, a Western expert observes with an almost audible smirk, ”these laws are of little broad significance. They have long been circumvented in practice in most areas of the economy.”

Such laws as Workmen’s Compensation Act 1923, Contract Labour (Regulation and Abolition) Act 1970, Industrial Disputes Act 1947, Factories Act 1948 and Minimum Wages Act 1948 provide imprisonment for violators.

But strangely the option to invoke those provisions is controlled by government officials.

Headquarters of the International Labour Organ...

International Labour Organisation – Presiding (United Nations Photo)

For any harassment they inflict on employees, employers cannot be prosecuted on those counts without express sanction of labour inspectors or commissioners.

Here are some examples:

— Workmen’s Compensation Act 1923 section 18A(2): No prosecution under this section shall be instituted except by or with the previous sanction of a Commissioner.

— Industrial Disputes Act 1947 Section 34(1): No Court shall take cognisance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate government.

How that works out on the ground was indicated when Lok Sabha Members Sunil Khan, Basudeb Acharia, Amitava Nandy and Gurudas Das Gupta drew attention to labour law violations some years ago.

The Labour Ministry gave data on the violations handled in 2003-04 and 2004-05 by the Central Industrial Relations Machinery headed by the Chief Labour Commissioner.

Of 9,826 and 9,538 disputes received under the IDA, for instance, 3,533 and 3,583 were settled while ”FOC– failure of conciliation–reports (were) submitted” in 4,276 and 2,743 disputes respectively.

The Ministry gave no account of how many violators, if any, went to jail.

“The Ministry and its machinery should be protecting labour– not employers,” was how Acharia, a Communist Marxist MP from Bankura, West Bengal, put it.

Asked then if he knew of any case in which an industrialist has had to go behind bars for breaking labour laws, Acharia said, “not one.”

As it is, given poverty and unemployment on one hand and the state of law and courts obtaining on the other, employees find themselves between a rock and a hard place.

The reverse appears to hold for affluent industrialists. Matters are filed in courts where they take years before it is time for appeals and more years.

How workmen or women survive without wages or relief may be hard to grasp for authorities not familiar with such hardship.

Thus it is that workers lose jobs while employers keep running industries and establishments– unmindful of consequences not in evidence. There is little to deter employers’ misconduct.

A published source says even West Bengal, the left bastion, saw 274 lockouts in 2000, more than half– 143– declared to reduce workforce on “the pretext of loss of economic viability.”

Short of sound laws and implementation, half measures abound.

The Institute of Company Secretaries of India proposed some time ago requiring independent professional assurance from practising company secretaries on labour law compliance.

But critics stress the importance of sound labour laws and effective enforcement.

Experts point out how professional auditors have for decades approved accounts without raising an eyebrow– while Swiss numbered accounts of Indians have grown.

Given such facts or data, it may appear natural that workers representatives agitate to rectify things.

Strangely, it is employers’ associations which have been demanding greater facility to hire and fire employees, a Labour Ministry statement noted some time ago.

“The employers have been vehemently pressing for labour reforms on the plea that these are necessary for making Indian industry globally competitive and for attracting more of foreign direct investment.

“The existing laws, it is contended by employers, slow down growth and job creation. They say that under the existing labour laws the churning of new skills is slower; companies lose cost cutting flexibility and ability to bounce out of recession quickly.

“The employers further contend that Labour Market will become more flexible with the amendments; more workers can be hired legitimately and can ask for better benefits including better work conditions, safety standards, welfare measures and health benefits,” the statement said.

Some of these arguments are backed by such institutions as the World Bank.

But critics ask how governments reconcile promises to workers of more jobs with bigger pay packets and better work conditions with promises held out to foreign investors of abundant cheap and skilled labour.

English: Official Portrait released by the Off...

Labour & Employment Minister Mallikarjun Kharge (Photo: Wikipedia)

At a conference in New Delhi, WB experts spoke of better work contracts.

Asked who will fix a contract if an employer breaks it, the experts promptly replied: the Courts.

Asked if it was fair for employees to have to go through years of litigation for wages of their work, the experts conceded the incongruity of the situation and spoke of judicial reforms.

They argued that reforms would follow in the legal system as pressure builds up. But that, critics say, is like putting the cart before the horse, especially considering some recent trends in labour-related adjudication and judicial orders.

On the other hand, experts say it is important to note that the associations seeking to change the rules are made up of industrialists who are themselves often subsidised by taxpayers in any number of ways.

Apart from receiving concessions in tax and costs of land and other public resources, many have been notorious in building up lakhs of crores of rupees of India’s Non Performing Assets– a euphemism for unrepaid loans.

Unlike tens of thousands of debt-ridden farmers who end their life unable to face the ignominy, no one appears to have heard of NPA defaulters making such choices.

Experts agree that the government must strike a balance. Citizens must not only be proclaimed to be equal, they must also be treated as equals. Just as workers must work, so must employers manage properly and pay wages.

Any failures or abuses, including manipulation of unions, must lead to consequences, they say.

Laws and fora must be put in place or firmed up to deliver justice in time– not at leisure, experts say.

UNI MJ TBA RP 1454

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Simplify Language Of Laws Of Land: PM – By Mukesh Jhangiani

March 6, 2005

Simplify Language Of Laws Of Land: PM*

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Prime Minister Manmohan Singh today launched India’s first national legal literacy mission: 2005-10 with a call to simplify the language of laws of the land.

”The complex legal language of our statutes acts as a hurdle to legal literacy… compounded by the intricacies of legal language in judicial pronouncements,” Dr Singh told invitees at the launch at Vigyan Bhavan in New Delhi.

He said ”an attempt should be made to simplify the language of the law so that any one who reads judgements and laws can easily understand their true meaning.”
The legal literacy mission is intended to empower millions of disadvantaged and other Indian citizens through awareness and free legal aid.
”This mission is a step in the direction of empowering people to enjoy their rights,” Dr Singh said. ”Equality in law requires equal access to law for this noble principle to translate into reality.”
Prime Minister Singh reminded that Article 39A of the Constitution gives a directive to the States to ensure that the operation of the legal system promotes justice on a basis of equal opportunity.
”It directs the State to provide free legal aid with the aid of suitable legislation or schemes. It also directs it to ensure that opportunities for securing justice are not denied to any citizen for reason of economic or other disabilities.”
He said the dictum that ignorance of law is no excuse ”creates a duty on the part of government” to make people aware of laws it enacts.
In spite of their publication in Gazette, due to low literacy, a majority of the population is not aware of its rights and duties, he said.
”This is an initiative that is dear to me and has my whole hearted support,” Dr Singh said.
The Mission has identified a set of beneficiaries it immediately expects to address: children, minority communities, victims of militancy, victims of crime, disaster and disease, child and bonded labour, landless farming community, dalits and tribal communities, especially in the northeast, farmers hit by droughts and floods, trafficked girls and sex workers and the poorest of the poor.
”From Ignorance to Legal Empowerment” was the goal proclaimed as part of the Mission’s emblem and mascot unveiled by the Prime Minister jointly with India’s Chief Justice Ramesh Chandra Lahoti and Law and Justice Minister Hans Raj Bhardwaj.
Justice Lahoti recalled the founding fathers’ vision of India as just and equitable for all citizens, but said ”this dream is yet to find fruition.”
In the 21st century– 57 years after independence– ”concepts such as just and equitable remain unfamiliar for the millions of people who still remain beyond the safety net of law and justice.”
Justice Lahoti said when citizens, particularly marginalised or underprivileged groups, know what the law has to offer them, they can recognise and challenge the injustices forcefully.
”The first step towards that knowledge of the law, which can transform people’s lives, is legal literacy.”
Bhardwaj told audience that the Mission was aimed at addressing the farthest geographical areas and the most vulnerable sections of the population in the first phase.
”The people need to be told the benefits of legal aid… otherwise they will continue to resign to their fate for exploitation and discrimination.”
The ceremony was also attended by Supreme Court Judges N Santosh Hegde and Y K Sabharwal and a number of other sitting and retired Judges, including Chief Justices of various High Courts.
Justice Hegde, Chairman of the National Legal Services Authority (NALSA), which has undertaken the Mission, reminded that legal aid was not charity– but an obligation of the State ”enshrined in Article 39A of our Constitution.”
He said NALSA was formed for this very purpose– ”to provide free and competent legal services and encourage the general public to settle their disputes amicably.”
A note of caution and realism was struck by Justice Sabharwal, Chairman of the Supreme Court Legal Services Committee.
”I must emphasise,” Justice Sabharwal said, ”that from Ignorance to Empowerment is a long journey and let us not hope that one NALSA will achieve it in next five years like a magic.”
”Only providing legal aid to settle a dispute is not a solution for the progress of our country.
”The solution lies in our hands if we can grant these people a window of social justice by way of monitoring why such benefits meant for them have not been delivered to them and if not delivered to them, then who in this country is responsible for such a lapse.
”We need to set examples of accountability in our Governance,” Justice Sabharwal said.
Asked afterwards whether legal literacy would include informing beneficiaries as to delays or other inadequacy involved in litigation, Justice Hegde said the effort would be to have matters resolved through pre-trial options.
These include Alternative Dispute Resolution (ADR) techniques such as conciliation, mediation, arbitration and so on. Litigation would be the last step, he said.
Justice Lahoti said three steps were being taken to reduce pendencies in courts.
They included relying in a big way on ADR, making justice delivery system more effective and introducing information technology in judiciary.
Justice Lahoti also mentioned two major studies which have been undertaken jointly along with Asian Development Bank and the United Nations Development Progamme to identify shortcomings in the system.
Asked about inquiry commissions, some of which end up in the archives, Justice Lahoti said governments– he was not referring to incumbent government– sometimes buy time by appointing inquiries essentially to let tempers cool.
UNI MJ RP GR1823

Indian Farmers’ suicides

Unlike debt-ridden Indian farmers who end their life, no one appears to have heard of such choices by NPA defaulters. https://docs.google.com/document/d/1yWK2YZA3CH4dM0e9E_cHwceJUlZkr_d9gAPBQLiWL9o/edit# …