Tag Archive | Supreme court

Soumya Vishwanathan’s Employer Fined Rs 250 – By Mukesh Jhangiani

                                                                                                                              March 26, 2009

Soumya Vishwanathan’s Employer Fined Rs 250

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Four months after a woman journalist was found shot in her car in the dead of night, her employer paid a Re 250 fine for breaking the Capital’s work hour norms.

TV journalist Soumya VishwanathanShot in dead of night (Photo: Mid-day.com)

The quantum of fine for the sort of violation incurred in Soumya Vishwanathan being at work till 3 am, some half an hour from a killer bullet, was set in the 1950s, shortly after India gained freedom.

Section 14 of the Delhi Shops and Establishments Act 1954 outlaws any establishment allowing women to work between 9 pm and 7 am in summer and, 8 pm and 8 am, in winter.

”Any contravention… shall on conviction, be punished with fine which shall not be less than twenty-five rupees and which may extend to two hundred and fifty rupees,” Section 40 of the Act says.

Indian governance– no matter the political label– has let it remain, notwithstanding the fall in Rupee’s buying capacity, the changing values or conditions, the state of security and the level of law and enforcement half a century thence.

”It’s one of the outdated provisions,” V V Giri National Labour Institute researcher Sanjay Upadhyaya acknowledged in an interview with United News of India Special Correspondent Mukesh Jhangiani.

On September 30, 2008, Ms Vishwanathan, 26, left her place of work at 03:02 am, say police, who got word of the incident at 3.41 am.

Greeting the news of the arrest of her alleged killers some six months later her mother, Madhavi Vishwanathan, remarked: ”It’s unfortunate that another murder had to take place.” She was referring to the murder of Jigisha Ghosh, 28, killed last week returning home from work.

The Soumya Vishwanathan murder sparked a debate over a young woman driving home from work unescorted at such hours.

Delhi Chief Minister Sheila Dikshit’s reported remark that ”one should not be adventurous” shocked even admirers of a woman CM. It contorted a serious issue, critics said.

”The girl is being blamed for driving home late after work,” fumed Sudha Sundararaman of All India Democratic Women Association.

She said the Chief Minister should instead be ”finding out how this happened and looking at ways to strengthen the city’s security set-up.”

Angry netizens pointed out that a chief minister responsible for law and order must make the city safe and secure for residents.

One, G Sriniwasan, remarked: If Shiela has her Z security removed and has to work to earn a living possibly she will change her tone.

Chief Minister of Delhi

Delhi Chief Minister Sheila Dikshit (Photo: Wikipedia)

Ms Dikshit acknowledged in a published interview that ”travelling at three in the morning is not a safe thing for anybody to do… even for boys.” She said, ”Companies employing young girls and boys 24 hours for that matter should provide escort for the safety of our girls and boys.”

Section 14 says ”no young person, or woman shall be allowed or required to work whether as an employee or otherwise in any establishment between 9 pm and 7 am during the summer season and between 8 pm and 8 am during the winter season.”

The Delhi government exempts employers who make workplaces ”secure and safe” for employees and provide them ”door to door pick-up and drop facility.”

Two weeks after the murder, New Delhi newspapers published her ‘Appeal’ reminding employers of exemption available ”subject to the safety and security of the women.”

But in a society where jobs are scarce and law enforcement scarcer– barely six per cent conviction rate for even heinous crimes– what happens when an employer does not obtain exemption ?

The city’s Shops and Establishments Chief Inspector filed a complaint naming the employer, Managing Director Aroon Purie, and the establishment, M/s TV Today Network, as accused no. 1 and no. 2.

K R Verma submitted that Ms Vishwanathan, working as producer with ”the aforesaid Management/Employer, met with an accident on her way home after leaving from work at 3.02.54 AM.”

The work attendance sheet showed that late Ms Vishwanathan and some other women employees ”worked during the hours prohibited under the Act,” the complaint said.

It said the management having ”not been granted any exemption” for Section 14, ”the employer committed an offence by violating the provision… and is liable to be punished” under section 40.

It prayed ”that the accused be summoned, tried and… punished according to law.” A lawyer for Purie urged the court to ”dispense with” his client’s personal appearance, saying he was ”falsely implicated” and ”impleaded for malafide reasons.”

Advocate Sushil Dutt Salwan pointed out that his client was ”a Padma Vibhushan Awardee” and ”not involved” in the company’s day to day administrative affairs.

On February 19, before Special Metropolitan Magistrate Javed Aslam at Karkardooma, the accusation was explained to a company executive, Puneet Jain, to which he pleaded guilty voluntarily.

Each accused was fined Rs 250 which was paid.

But if penalty is intended to deter violations then a Re 250 fine in 2009, specially when it is not reported by mass media, amounts to little, experts acknowledge.

The order is not even on the internet notwithstanding Rs 854 crore of Indian taxpayer money the Law and Justice Ministry is spending on computerising courts and judgements or orders.

In a newspaper interview as early as December 2002, Verma’s predecessor, M K Gaur, had warned that call centres faced prosecution unless they complied with law.

Incidents involving women employees returning home from call centres at odd hours show the inadequacy of deterrence at work.

Experts agree there is dire need for clear laws, with strong deterrence in terms of mandatory punishment not just for violations, but for any lapse in enforcement at any level.

The 1954 Act regulating work hours, pay and so on is one of two dozen laws on matters ranging from minimum wage to gratuity the city’s understaffed Labour Department enforces.

While commercial activity has mushroomed, hogging even space meant for homes and street traffic, law or its rule have yet to catch up.

The Department neither knows how many units do business in the National Capital Territory– having stopped counting two decades ago– nor makes inspections provided in law to catch offenders.

Asked by UNI in September 2008– just weeks before the murder– how many shop owners were prosecuted under the Act in the last three years, the Department replied: ”Nil.” But experts indicate more bad news– a trend gradually excluding more and more employees from the protective coverage of labour laws.

Upadhyaya cites the ”reversal” of a theory of notional extension of employers’ premises upheld in Supreme Court Judge S Jafer Imam’s judgement of April 28, 1958.

Recent apex court judgements– September 1996 and November 2006– do not appear to subscribe to the principle, he says, stressing the need for a ”more worker centric” approach by judiciary.

UNI MJ

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Jana To Industry: Change Must Promote National Interests – By Mukesh Jhangiani

Portrait of Jana Krishnamurthi

K Jana Krishnamurthi (Photo: Wikipedia)

                                                                                                             September 6, 2002

Jana To Industry: Change Must Promote National Interests

By Mukesh Jhangiani
United News of India
New Delhi (UNI) – Industry Representatives seeking an overhaul of labour and other laws were impressed upon by Law and Justice Minister K Jana Krishnamurthi today that ”the change must not only benefit you, but also promote the national interests.”

Opening a conference on legal reforms sponsored by the Federation of Indian Chambers of Commerce and Industry and the Bar Association of India, Mr Krishnamurthi told the hosts his Government ”will welcome any suggestions from you for any change in law.”

But the Minister underscored that ”one factor which has to be kept in mind is that while recommending a change in provisions of law governing the field which FICCI represents… a ground rule must be observed– the change must not only benefit you, but also promote the national interests.”

A discussion paper prepared for the ‘National Conference on Legal and Judicial Reforms– the Bird’s Eyeview on Balancesheet and Projections’ argued for scrapping the Essential Commodities Act, overhauling labour laws and spelling out ”as early as possible” an exit policy– a euphemism for provisions for industry to fire employees it no longer considers needed.

The paper also questioned the practice of the nation’s biggest litigant– the Government– just ”sitting pretty” when it came to implementing judgements or simply filing appeals.

Mr Krishnamurthi dwelt at length on the ancient concept of Dharma which sets individuals in a range of groupings such as family, community, region, period, profession, nation, universe and so on.

”All these are arranged in such a way that one does not come in conflict with the other, but each is in harmony with the other. If there is a conflict, then a wider Dharma takes precedence,” he said.

The Law and Justice Minister stressed that ”the modern law must also a take a cue from this ancient concept of ours.”

He acknowledged that industry, commerce and trade must have their own laws to promote growth of these sectors, but cautioned that ”care will have to be taken to see that these laws, which promote the interests and advancement of these groups, do not come in conflict with the laws intended for promotion of good and advancement of other groups in the society or the society as a whole.”

He made it clear that ”group interest must yield to the interest of the nation as a whole.”

Thanking the Minister for his remarks, FICCI President Rajendra S Lodha said the tone for the Federation’s functioning was set by Mahatma Gandhi some seven decades ago in terms of the concept of trusteeship, from which the organisation had not deviated ”too much.”

Earlier, Krishnamurthi spoke of applying information technology in courts to substantively solve the problem of as many as 24 million pending cases in various subordinate and higher courts across India.

He emphasised designing a judicial database which would facilitate this process by providing such data as the number of cases filed daily under criminal or civil heads, the section of the Act under which cause of action is invoked or advocates appearing for the parties.

He said non-utilisation of judges who retire after the age of 60 or 62 years was a colossal waste, especially when there are some 1800 vacancies in subordinate courts for want of suitable candidates and suggested involving them in arbitration sort of alternative mechanisms of resolving disputes.

He also underscored the need for a National Judicial Commission empowered for selecting judges of High Courts and Supreme Court.

The Minister told participants about Fast Track Courts aimed at reducing the number of pending criminal cases, especially those relating to undertrials long in prison and said he firmly believed that “any citizen of India should not be deprived of his freedom more than a minute than the law requires.”

Currently, more than 200,000 undertrials languish in custody pending adjudication, costing the exchequer Rs 430 crore annually for maintenance of remand prisoners alone, the conference was told.

Mr Krishnamurthi also spoke of setting up Law Schools along the lines of Indian Institutes of Technology and Management, which have become world famous brand names by virtue of the quality of graduates they have produced over decades.

In his welcome address, Mr Lodha called for new enactments to keep pace with changes in such areas as Taxation Laws, Company Law, Labour Legislation, Standards of Weight and Measures (Packaged Commodities) Rules, 1977.

Mr Lodha suggested consulting the Law Ministry before filing an appeal, taking multi-pronged corrective actions to overcome delays, encouraging entrusting judicial work to administrative or quasi judicial tribunals and referring more cases to arbitration.

Bar Association President F S Nariman stressed need for judges to push cases towards speedy conclusion and suggested setting up Supreme Court benches in various zones and hiring judges who retire at 61 or 62 as ad-hoc judges in the high courts.

UNI MJ AR HS2139

UPA Govt Seized Of Law Commission’s 25-Year-Old Idea ! – By Mukesh Jhangiani

                                                                                                                August 18, 2011 

English: Ashoke Kumar Sen at the United Nation...

Ashoke Kumar Sen, former Law and Justice Minister, to whom the Law Commission of India submitted its Report No. 116 on Formation of an All India Judicial Service on November 27, 1986 (Photo: Wikipedia)

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Twenty-five years after experts suggested an All India Judicial Service to draw the best talent to judiciary, the United Progressive Alliance government is seized of the matter, Parliament was informed today.

The government is seized of the matter of creation of an All India Judicial Service under Article 312 of the Constitution, Law and Justice Minister Salman Khurshid said in a written reply in the Lok Sabha.

He was answering Bharatiya Janata Party member from Rajasthan Arjun Ram Meghwal and Indian National Congress member from Haryana Shruti Choudhry who drew attention to a Law Commission recommendation made in 1986.

The two Members wanted to know whether the government intends to introduce the said Service, the timeframe set for its introduction, and, if not, the reasons therefor.

In his reply, Khurshid acknowledged the Commission findings that such a service would also serve as a powerful unifying influence and counteract growing regional tendencies.

He said the process of creating it requires a Resolution to be passed by the Rajya Sabha enabling Parliament to enact necessary laws.

He did not say when that and any subsequent requirements might be carried out.

In reply to another question, Khurshid said the government has examined various options — including National Judicial Commission– to address the issues concerning appointment of Judges of the Supreme Court and High Courts.

However, no specific proposal has been finalised, the Minister said.

Over the past many years, selection for appointment of Supreme Court and High Court Judges has been made by a Judges collegium but questions have arisen owing to complaints over conduct and persistent vacancies.

The Rajya Sabha, for instance, took an unprecedented step this afternoon to approve an impeachment motion against Calcutta High Court Judge Soumitra Sen who is accused of having misappropriated funds while he was a lawyer before his elevation.

The motion will next be considered in the Lok Sabha, and, if approved, go to the President, the appointing authority, for the Judge’s removal from office.

The last Parliament was close to impeaching a Judge was in the 1990s when it considered corruption allegations against former Punjab and Haryana High Court Chief Justice V Ramaswami defended by then senior advocate Kapil Sibal.

The move in the Lok Sabha fell through then with Indian National Congress members abstaining, an instance cited ever since by critics as proof that impeachment was not a sound way to ensure accountability.

Khurshid was answering Meghwal and Communist Party of India (Marxist) member from Kerala M B Rajesh and INC member from Lakshadweep Hamdullah Sayeed on steps to improve judical service quality and standards.

The Members asked if the government proposed to introduce a constitutional code of conduct for Judges and a mechanism for periodical assessment of Judges performance.

Khurshid said the UPA government introduced a Bill in the Lok Sabha in December 2010 to ensure accountability and transparency in the higher judiciary.

The Judicial Standards and Accountability Bill, 2010 incorporates a mechanism for enquiring into complaints against Supreme Court and High Court Judges and makes way for Judges to declare their assets and liabilities, besides setting standards for them to follow, he said.

The Minister gave no timeframe as to its enactment.

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Scholar’s Challenge To Apex Court Globalisation ! – By Mukesh Jhangiani

                                                                                                                        August 11, 2006

   

Dr. Upendra Baxi, at NUALS

Prof Upendra Baxi (Photo: Wikipedia)

Scholar’s Challenge To Apex Court Globalisation !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Carnage witness Zahira Sheikh’s imprisonment reflects ”dual… standards” of access to justice manifest since globalisation, according to an Indian law scholar.

The view was voiced by Prof Upendra Baxi last weekend in a conference where participants were invited by Prime Minister Manmohan Singh to critically examine issues of the day.

Speaking on Access to Justice in a Globalised Economy, Prof Baxi cited half a dozen judicial orders he said erected a ”wall of difference” between ”globalised and de-globalised Indian citizens”.

A former Delhi University Vice Chancellor, Prof Baxi has served as Professor of Law at Delhi University as well as Warwick University in England and authored a large number of professional books and other publications.

The SC orders covered India’s accession to the World Trade Organisation, the $470 million Bhopal Gas disaster settlement, rejection of temps’ bid to regularise jobs, Narmada dam construction, demolitions and Best Bakery case.

Prof Baxi said the ”structural adjustment” of judicial role began with the apex court’s very stance on world trade conditionalities.

It was ”comprehensively urged” before the Court that India’s accession to the WTO ”violated not just Part 111 provisions but also the basic structure of the Constitution.

”The Court, overall, asked the petitioners to return to its powers as and when any such deleterious impact became more manifest!”

It ”did not even seek to match the blood-group of the WTO agreements, especially the TRIPS– Trade-Related Aspects of Intellectual Property Rights– with Parts 111 and IV of the Constitution.

”May I suggest that we read this decisional stance as the first step towards the structural adjustment of judicial review power, process, and activism?”

”A second momentous development towards the structural adjustment of judicial role and activism,” he said, occurred ”through the entirely unconscionable and unconstitutional judicial orders decreeing the infamous Bhopal settlement”– or what he called an instance of victims ”re-victimised”.

He said the Court not merely reduced the compensable amount from the ”Indian government computed US $3 billion to $470” million but also granted the Union Carbide full immunity from criminal proceedings.

It surrogated ”the Indian government as a fully-fledged clone of that multinational, and all its world-wide affine, in regard to all civil action, Indian and world-wide!

”Twenty-one years since, and I cannot speak of this without a lump in my heart, the catastroph(e) victims remain staggeringly re-victimised.”

He said a third story concerned the ”determined reversal of the proud labour jurisprudence of the Supreme Court itself.

”The juristic and juridical labours of” Justices VR Krishna Iyer, D A Desai, O Chinnappa Reddy, M P Thakkar, K Subba Rao, P B Gajendragadkar, Mohammed Hidyatuallah ”are now reversed by many a hurried stroke of insensitive judicial pen!

”A 2006 decision of the Supreme Court even goes so far as to ‘overrule’ without specific naming all prior judicial decisions.

”This judicial adventurism, there is no other appropriate way of naming this after all, remains an entirely unaccountable and rather unprecedented judicial technique in the annals of the Commonwealth judiciary!

”The learned Justice who writes the principal opinion even goes so far as to suggest that his predecessors laboured under a misimpression that ours was a socialist constitution!

”This eminent judge compelled a momentous jurisprudential anxiety for me; I scoured the histories of recent amendments to find whether some recent constitutional amendments had after all deleted this 42nd Amendment insertion to the Preamble to the Constitution!

”Allow me to bring to you the good news that this preambulatory recital has survived the ravages of contemporary Indian globalisation! The bad news is that now for the Supreme Court of India this makes not a tattle of difference!

”I am not saying at all the later Justices may not feel free to dissent from their predecessors. Nor am I saying that the predecessors may claim any prophetic wisdom over the future of constitutional development.

”However, I do wish to suggest with the fullest constitutional sincerity that in doing so they remain fully accountable at the bar of public reason. And in this they seem now altogether to collectively fail.”

Prof Baxi said a fourth instance of structural adjustment of judicial power was furnished by the Supreme Court’s ”meandering jurisprudence” concerning the Narmada Dam construction.

”At one decisional moment, we are told that the height of the dam may not be raised without the most solicitous regard for the human rights, and human futures, of the ousted project affected peoples.

”At another decisional moment stands enacted the unconstitutional pari passu principle under whose auspices submergence may actually occur with some indeterminate regard for relief, rehabilitation, and resettlement.

”At a third moment, the affected peoples stand somehow assured of that the Court is not powerless to render justice to the adversely affected peoples even as submergence occurs.

”Who knows what a fourth moment may after all turn out to be? The present writing on the judicial wall fully suggests the possibility that the Court may terminally declare that the tasks of relief, resettlement, and rehabilitations stand almost fully and magically accomplished!”

Prof Baxi said,”A fifth horrid story of the structurally adjusted judicial role and ‘responsibility’ stands now furnished by the judicially mandated/mediated sanction for the urban demolition drives that cruelly impose themselves on the bloodied bodies of the urban impoverished.

”Some recent judicial performances go so far as to fully suggest a total reversal of human rights to dignity and livelihood, which the Court itself since the Eighties indeed not too long ago so painstaking evolved.

”The enforced evacuees stand denied all rights of constitutional due process, including access to their erstwhile meagre belongings.

”The bulldozers remove the last sight of their existence as documented citizens; all evidence of title and occupation– including the only ‘passport’ they posses by way of pattas, their inchoate ‘title’ deeds, and prominently their ration cards) stand maliciously and wantonly destroyed.

”Not too long ago during the 1975-76 imposition of the internal Emergency, such happenings were poignantly described as emergency excesses.

”Today, these somehow constitute the badges of good governance!”

Prof Baxi said the sixth instance concerned ”the harsh way in which the Indian Supreme Court dealt with the ‘contempt’ committed by Zahira Sheikh.”

Here was ”an eye-witness to the destruction by arson of her own kin… by the Hindutva mobs,” treated ”as news/views ‘commodity’ in hyperglobalising Indian mass media… as a resource appropriated by local politicians and by some activists alike” and as a target of ”human rights and social movement activism.”

Prof Baxi saw Ms Sheikh as ”overall… a deeply traumatised victim of organised political catastrophe” compelled by the force of circumstance to make contradictory statements.

That is what finally decreed ”her fate as a contumacious Indian citizen worthy only of the most severe punishment in the annals of contempt jurisprudence.”

Prof Baxi noted how the same Court had remained ”largely lenient in its regard for Kalyan Singh for an objectively presented far worse egregious contumacious conduct.

”It also remained lenient for Aurundhati Roy, an NBA– Narmada Bachao Andolan– activist marshalling the power of International Union of Journalists, and Shiv Shankar, a former Union Law Minister, for a while marshalling the power of judicial elevation.

”Both of these remained far more contumacious; yet they were thought eligible for the otherwise rather relaxed standards of contempt jurisprudence. Yet, the Supreme Court leaned heavily on Zahira.

”How may we understand this judicial asymmetry in our, or indeed in any access talk save by the fact that that high political status was simply not available to Zahira?”

”To depict the scenario thus is not to present any mean-mouthed mode of attributing any class differential in access to justice.

”I only seek to service with the highest order of responsibility in discharging my citizen responsibility acting under my Part IV-A fundamental duties of Indian citizens, by highlighting differential practices of access to justice under the Indian Constitution.

”In the same spirit, some of us have now approached the President of India for pardoning Zahira; we know that this may not happen, although in a proud 50+year Indian democratic development this, it ought to.

”But this much remains clear: accesses to justice claims remain differentially distributed by the apex Court. Its ire at ‘contumacious’ conduct by public citizens is increasingly met by different standards for some de-globalised compatriots.

”The wall of difference thus erected between globalised and de-globalised Indian citizens seems to enact some contradictory, dual, even multiple, standards of differential access to justice.”

He said ”I sincerely hope… I (am) wrong in saying this. At the same moment, surely, all this should give us some pause in our parrot-like or His Globalising Master’s voice-type talk concerning ‘access to justice’.”

UNI MJ RP DS1110

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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.

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Holding Sailors To Ransom ! – By Mukesh Jhangiani

                                                                                                              March 10, 2011

English: Map showing the location of the Gulf ...

Gulf of Aden located between Yemen and Somalia. Nearby bodies of water include the Indian Ocean, Red Sea, Arabian Sea, and the Bab-el-Mandeb strait (Photo: Wikipedia)

Holding Sailors To Ransom !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Two years after India’s Supreme Court questioned government handling of high sea piracy involving Indian lives, protesters again drew attention this evening to the plight of seamen held hostage by Somalis in the Gulf of Aden.

”Kuchh nahin! Kuchh nahin! (nothing! nothing!),” was how Sampa Arya, wife of an Indian hostage described Prime Minister Manmohan Singh’s response to her pleadings to intervene in the situation.

An Egyptian cargo ship, Suez, was seized by pirates in the Gulf of Aden on August 2, 2010 despite barbed wire and fire hoses, not to mention three anti-piracy warships cruising within 40 miles.

The Panamanian-flagged ship with a crew of 24– six of them Indian– was eastbound towards the Suez Canal.

Wife of third officer Ravinder Singh Gulia, Mrs Arya broke down in a telephone interview when she was asked about any assurance she received from Dr Singh.

Sobbingly, she spoke of tortures inflicted on her husband and other hostages. ”They hit him on the knees. It is paralysing. He is not allowed even basics.”

Relatives and friends assembled at Jantar Mantar in the evening for a vigil discussed the passing deadline. The captors have demanded $4 million for release of the Indian hostages, they said.

”The deadline for Suez is over today. We are worried,” said second officer Akash Verma, adding with a touch of urgency that ”a solution must be found.”

Their key concern: the Indian authorities put pressure on the Egyptian owners of the cargo ship to pay up and free the hostages.

Barely a mile away, Parliament was told 49 ships were hijacked from international waters off the Indian Ocean in 2010 and that 38 Indian crew were still captive aboard four ships.

Answering Congress member from Kerala P J Kurien, Shipping Minister G K Vasan recited such steps as deploying naval ships, alerting other forces in the region and waging a multilateral campaign.

Three other ships Vasan listed: Iceberg-1 hijacked on March 29, 2010 with six Indian crew, Rak Afrikana, hijacked on April 11, 2010, with 11 Indian crew, and Asphalt Venture hijacked on September 29, 2010 with 15 Indian crew.

Somali acts have threatened international shipping over the past several years but experts say efforts to counter the sea brigands appear to suffer in more ways than one.

”The Somali situation does not seem to strictly qualify as piracy under the Law of the Sea convention 1982,” says former Additional Director General of Shipping and Nautical Adviser J S Gill, adding that the wording ”may hamper charging a person as a pirate.”

Mariners say Somali activity has spawned a whole new mostly-Western industry for insuring vessels at risk with ever-increasing premiums.

That and other factors such as the data intelligence Somalis seem to possess or lawyers quick to rise to their defence on arrest suggest a new dimension– of an ‘organised under-world.’

Far from being sea pirates hunting for victims, they sometimes seem well-informed about their potential targets to the point of knowing for instance the cargo on board and the exact number of hands a vessel set out with, seafarers say.

Seema Goyal, the wife of a former hostage, suggested the need to sanitise the Gulf of Aden– a suggestion echoed by several officers.

Captains I Solanki, T K Dhingra, P Sarin, P K Mittal and I Kharbanda stressed a cordon to ensure that brigands cannot come out to attack.

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