Prior to the advent of the Factories Act of 1883, India had seen the worst of an unregulated labour market, a convenient indentured labour base for the British Empire which saw workers as dispensable commodities to its profit-making industries. This thought came to be discarded swiftly in a socialist welfare state freshly independent of such colonialism. In fact, the labour movements had been pivotal to the freedom struggle and became bedrocks for constitutional guarantees of freedoms. Sadly, in the recent  statements surrounding the dilution of labour laws by certain states of India, against the backdrop of the Covid-19 lockdown, one sees a foreboding resurrection of thoughts long relegated to a period of exploitation.

Deregulation of labour laws and dissuading unionisation seem to have surfaced as reactionary measures to the economic downturns which have accompanied the Covid-19 pandemic, but a finer assessment reveals that they may be more fittingly characterised as a continuation of policy contortions buoyed by unchecked corporate influence. The devastating human rights violations that will follow suit are therefore collateral damage to a bargaining table which is increasingly stacked against the 400 million Indian workers sinking deeper into poverty.

Expansion of unchecked corporate power:

Structural adjustments are an extension of unchecked corporate influence which has grown in varying forms. Political influence has been purchased through untraceable investments into opaque electoral bonds; that same amount which the ‘Big Five’ spend lobbying the US Congress over 13 years were invested in just two months in India. Construction and mining projects have been cleared in protected areas – reserves and national parks – even as environmental norms have been diluted to regularise projects that were against such protections.

As per the UN Guiding Principles for Business and Human Rights (UNGPs), the Indian government formulated a  Zero Draft of the National Action Plan (NAP) which revolved around the three fundamental pillars of the UNGPs – a) the State’s existing obligations to respect, protect and fulfil human rights and fundamental freedoms; b) the requirement of business enterprises to respect human rights, and c) the need for access to effective remedy for those who are affected by adverse business-related human rights impacts or abuse. In this context, a major criticism is that the National Baseline Assessment, which is designed to identify gaps in protections and inform the prioritisation of actions in the NAP, has not yet been undertaken and remains a glaring gap which will entail that the NAP may fail to anticipate and address key implementation challenges. Further, the unfortunate reality remains that such commitments are being undermined heavily by corporate interests. The India Responsible Business Index shows that only 14 of top BSE listed companies have committed to recognising fair living wages. It is in this environment of unchecked corporate influence that a recent trend towards accelerating employers’ interests at the costs of human rights of workers has emerged.

The recent deregulation spree:  

This penchant for dilution of labour laws which govern inter alia minimum wage, working conditions, and rights of migrant workers seems to be a logical extension of the policy shift towards an overtly asymmetrical power sharing arrangement. To contextualise, deregulation was underscored by the Economic Survey of India (2019-20), pinning the blame for modest entrepreneurial growth on labour regulation requirements. The message had been clear: to face any economic turmoil, such regulations would be the first hindrance. A message that clearly emanates from corporate interests and lobbies.

The laws targeted by the State Ordinances are no strangers to legislative efforts at dilution. Laws on minimum wages, bonus, contract labour and interstate migration, have previously been subjects of the Code on Wages 2019 and the Occupational Health, Safety and Working Conditions Code of 2019. Criticisms of these Codes have regularly pointed out that they seem to be instruments of securing employers’ interests even at the cost of workers’ rights. Definitions of critical components such as ‘minimum wage’ are missing and discretion is granted to governments to determine their own methodology to categorise the same, principal employers are protected from financial and criminal responsibility for workplace accidents or death and deterrents such as penal provisions also stand removed. The most glaringly problematic of these gifts to employers’ interests is the dismantlement of enforcement mechanisms and the provision of a self-certification scheme for employers to show compliance with regulations as per their own desires. 

Even trade unions in the past year had been agitating against the Trade Unions Amendment Bill of 2019 which vests complete control in the hands of the government to recognise trade unions.  A move which has been seen as an attack on collective bargaining powers, which is a critical element of workers’ rights. Against this background, the current steps towards temporary removal seem to be the penultimate step off a slippery slope.

One is therefore left confounded by the argument which in effect states that since the protection of existing legislation only extends to 10% of the national workforce, it is no loss to strip away this fig leaf of pretence of labour rights entirely. Orwellian ‘doublespeak’ is alive and kicking when such determination is proclaimed to be a measure to ‘protect workers’.

A tenuous connection:

The underlying question which persists is whether the dilution of labour laws indeed provides a feasible tradeoff for economic benefits. Research has revealed otherwise. A study by the International Labour Organisation on Employment Protection Legislation instead showed  negative effects of deregulatory market ‘reform’ in developing countries in terms of tackling unemployment, a scenario which India cannot afford to exacerbate as it undergoes a record unemployment high.The tenuous link between dilutionary measures and market performance has been seen with scepticism, if not outright dismissal by most studies, particularly for developing countries where such measures tend to disproportionately affect marginalised groups within the labor markets.

On the extreme but likely plausible end of the spectrum, all such measures are coming on the heels of rising concerns by global watchdogs that ‘modern slavery’ will see an uptick in the shadow of the pandemic – India already has an estimated eight million people in modern day slavery

 as per the Global Slavery Index- and to dilute protective measures may risk creating a conducive atmosphere for the same. In the nationwide Covid-19 lockdown, migrant workers were restricted from travelling back to their home states, under pressure from industrialists which bank upon their labour. The workers themselves had refused to work and repeatedly sought assistance from the central government to return home. To compel a worker to work under diluted protections,  even as the rest of the country is cloistered in the safety of their homes to withstand a pandemic,  is effectively forced labour – as classist a move one could fathom and not to mention a blatant violation of constitutional guarantees against forced labour. To want to return to the safety of one’s home, or to have the assurance of a safe working environment and make minimum wage is not an exercise in privilege. Far from it, it is a demand for a right to life and to live a meaningful life, free of servitude and compelled labour: a basic human right. 

It is apposite to remind legislators of the positive ratification status of India to four of the eight core conventions of the ILO: Forced Labour 1930, Abolition of Forced Labour 1957, Equal Remuneration 1951, commitments to which it is bound at an international and domestic level. Most recommendations which have flown out of international organisations have focused on measures such as public employment programmes in the absence of social protective measures in developing countries.  Deregulation as a step in the opposite direction is more likely to aggravate human rights concerns which emerge in an economic crisis. A ripple effect of such measures is more likely to be seen in the form of economic inequality and deepening of societal fault lines of gender, religion and caste.  In a country where wages to workers are less than 3 percent of input costs, to say that regulations make Indian labour more costly is to function with the hypothesis that even minimum wages are too heavy a burden for a capitalist regulatory regime.

Aiman Hashmi has graduated from St.Stephen’s College, Delhi with a bachelor’s degree in English. She is currently a final year LLB candidate at the Faculty of Law, University of Delhi.