📰 Compassionate job not a vested right, says Supreme Court
‘In considering claim, it is open to authorities to evaluate the financial position of the family’
•The Supreme Court has held in an order that compassionate employment is not a vested right.
•A Bench of Justices D.Y. Chandrachud and A.S. Bopanna said the compassionate employment scheme was intended to enable a bereaved family tide over financial crisis caused by the untimely death of a breadwinner while in service.
•“Compassionate appointment is not a matter of right, but is to enable the family to tide over an immediate crisis which may result from the death of the employee,” the court noted.
•It said the authorities were allowed to use their discretion to evaluate the financial position of the family.
•“Undoubtedly, pension is not an act of bounty, but is towards the service which has been rendered by an employee. However, in evaluating a claim for compassionate appointment, it is open to the authorities to evaluate the financial position of the family upon the death while in service,” the Supreme Court has observed.
•The court was hearing an appeal filed by the Union government against a Madras High Court judgment which upheld a Central Administrative Tribunal direction to consider the compassionate appointment of the widow of a sergeant in the Air Force, who had died of cancer in 2008.
Despite progressive aspects, linking electoral rolls with Aadhaar raises apprehensions
•An unwillingness to allow meaningful debate and invite wider consultation can undo even the progressive aspects of problematic legislation. Ignoring protests, the Union government has managed to push through a Bill in Parliament to link electoral roll data with the Aadhaar ecosystem. On the face of it, the Bill’s objective — to purify the rolls and weed out bogus voters — may appear laudable, and the seeding of Aadhaar data with voter identity particulars may seem to be a good way of achieving it. Indeed, this can also allow for remote voting, a measure that could help migrant voters. The four qualifying dates for revision of rolls will help in faster enrolment of those who turn 18. However, other aspects hold grave implications for electoral democracy. The Opposition underscored the possible disenfranchisement of legitimate voters unwilling or unable to submit Aadhaar details, the possible violation of privacy, and the possibility that demographic details may be misused for profiling of voters. Each is a valid concern that ought to be considered by a parliamentary committee. Union Law Minister Kiren Rijiju has said the proposal has been unanimously approved by the Parliamentary Committee on Law and Justice. But, it is not clear if the specifics of the Bill had been discussed widely and public opinion sought.
•There are indeed complaints that some electors may be registered in more than one constituency and that non-citizens have been enrolled, but these can be addressed by other identification processes. In fact, the Aadhaar database may be irrelevant to verify voter identity because it is an identifier of residents and not citizens. And the complaints of wrongful enrolment have come up even against the unique identity number allotted to more than 90% of the population. Mr. Rijiju is confident that the Election Laws (Amendment) Bill satisfies the tests laid down by the Supreme Court — a permissible law, a legitimate state interest and proportionality. However, this has to be rigorously examined. Even though the Aadhaar requirement is said to be voluntary, in practice it can be made mandatory. The Bill says the election registration officer may require the submission of the Aadhaar number both for new enrolments and those already enrolled. The choice not to submit is linked to a “sufficient cause”, which will be separately prescribed. Whether the few permissible reasons not to intimate one’s Aadhaar number include an objection on principle is unknown. If an individual’s refusal to submit the detail is deemed unacceptable, it may result in loss of franchise. Therefore, the measure may fail the test of proportionality. If the Government really has no ulterior motive in the form of triggering mass deletions from the electoral rolls, it must invite public opinion and allow deeper parliamentary scrutiny before implementing the new provisions that now have the approval of both Houses of Parliament.
📰 How the Code on Wages ‘legalises’ bonded labour
It allows employers to extend unlimited advances to workers and charge an unspecified interest rate on such loans
•Debt bondage is a form of slavery that exists when a worker is induced to accept advances on wages, of a size, or at a level of interest, such that the advance will never be repaid. One of India’s hastily-passed Labour Codes — the Code on Wages, 2019 — gives legal sanction to this horrifically repressive, inhuman practice, by allowing employers to extend limitless credit advances to their workers, and charge an unspecified (and hence, usurious) interest rate on them.
•Despite previously existing legal protections, vulnerable agricultural, informal sector and migrant workers were already becoming trapped in a vicious cycle of mounting debt and dwindling income, stripping them, their families and future generations, of their most basic rights. It remains one of the most pernicious sources of control and bondage in India, and is incompatible with democracy.
•What is shocking is that instead of preventing such enslavement of workers and protecting their fundamental rights, the present government appears to openly abet the practice, by undoing even the weakest safeguards earlier in place under the Minimum Wages Act, 1948 (now subsumed in the Code).
A free pass to debt bondage
•Rule 21 of the Minimum Wages (Central) Rules, 1950 (corresponding to the Act) spelt out certain ‘deductions’ permissible from the wages of workers. The sub-rule (2)(vi) allowed for “deductions for recovery of advances or for adjustment of over payment of wages, provided that such advances do not exceed an amount equal to wages for two calendar months of the employed person”.
•Additionally, it stated, “in no case, shall the monthly instalment of deduction exceed one-fourth of the wages earned in that month”.
•Compare this with Section 18(2)(f)(i) of the Code on Wages, which introduces two major changes to the foregoing.
•This section allows deductions from wages for the recovery of “advances of whatever nature (including advances for travelling allowance or conveyance allowance), and the interest due in respect thereof, or for adjustment of overpayment of wages”.
•The subtle manipulations introduced have huge implications. One, it has done away with the cap of ‘not more than two months’ of a worker’s wages under the earlier Act, that an employer can give as advance. This allows employers to lend unlimited advances to their workers, tightening their grip.
•Two, it has legalised the charging of an interest rate by the employer on such advances, by adding the clause on interest, and with no details on what might be charged. The net impact is an open sanction for the bonded labour system to flourish.
•Moreover, the Code increases the permissible monthly deduction towards such recovery, up to one-half of the worker’s monthly wage, as compared with one-fourth under the earlier Act.
•Not that the presence of any law under our Constitution even before the Labour Codes — such as The Bonded Labour System (Abolition) Act, 1976 — or various Supreme Court judgments, have ever deterred the bonded labour system from being widespread across sectors, from agriculture to quarrying, spinning, and more.
Cases in Rajasthan
•In Baran district, Rajasthan (2011-12), a series of Sahariya (a primitive tribal group) families boldly came out one after the other and spoke of their harrowing experiences of violence and even rape at the hands of Sikh, caste Hindu, and Muslim landlords, for whom they had worked as ‘halis’ for generations. The mostly upper-caste government officials from the Collector onwards put up a wall of resistance in acknowledging them as bonded labourers as per the Act, thereby denying them any sort of relief or rehabilitation, till pressure was mounted.
•In a large-scale primary survey in a mining cluster of Nagaur district, Rajasthan for the Mine Labour Protection Campaign (2015), we found that one in three workers interviewed had taken advances from their employers ranging from ₹1,000-₹1,50,000 at the time of joining work. Of them, about 50% said they took the amount “to pay off the earlier employer or a moneylender”.
•But in Parliament, the existence of bonded labour has simply been denied among elected representatives, or grossly understated.
•Debt bondage and forced labour flourish because the Government has done nothing to ensure the economic security of labourers. And it is set to worsen if this labour code provision is allowed to take shape.
Need for state intervention
•It is no coincidence that the disproportionate effect of this huge regression in the Labour Code will fall on Dalits and the landless. In the Nagaur study, for instance, we found that 56% of the workers were Dalits, as contrasted with only 3% of the mine owners.
•The vast proportion of landless agricultural labourers in India, to date, are Dalits.
•Anand Teltumbde powerfully writes in Republic of Caste, “The dominant castes understood that if dalits came to own the means of survival, they would repudiate their servile status and its attendant social bondage... Economic independence is an aspect of liberty and its absence, as a corollary, spells slavery.”
•Indeed, this is exactly what B.R. Ambedkar feared would play out in India, and hoped to prevent, through his pamphlet, States and Minorities, released in the 1940s (see Article 2). In her Ambedkar Lecture, 2018 at the University of Edinburgh, Rupa Viswanath, Professor of Indian Religions at the Centre for Modern Indian Studies, University of Göttingen, expounds on Ambedkar’s later-age line of reasoning that “what makes the translation of ‘one-man-one vote’ to ‘one-man-one-value’ possible, is the worker’s economic freedom”.
•Ambedkar understood that economic enslavement was an extreme form of coercion that rendered political freedom meaningless, and that democracy itself required state intervention in the economic structure to prevent such practices, she says.
•While he proposed a complete recast of rural and agrarian land structures, and state ownership of land as crucial to this, she explains, he also defined democracy as resting on two premises that required the existence of economic rights.
•The first, relevant to the present discussion on Labour Codes, was that “an individual must not be required to relinquish his Constitutional rights as a condition precedent to the receipt of any privilege”. But that is exactly what the unemployed are forced to do — merely for the sake of securing the ‘privilege’ to work and to subsist, she notes.
Deepening inequality
•The larger picture we must keep in mind, therefore, is this. Government after government, under the garb of being pro-worker, has schemed to intervene in exactly the opposite direction as desired — by maintaining and deepening economic inequality to the advantage of the privileged castes and classes, thereby keeping true political freedom out of the workers’ reach. And it is this line that the Central government has pursued with even more gusto, in the recasting and passing of these retrogressive labour codes.
•If the farm laws could be repealed, then these anti-labour codes, with numerous other dilutions that snatch away the mostly non-existent rights of the far more vulnerable class of workers, must surely go.
📰 A deeply insecure Union Territory
After the passing of the Reorganisation Act, Ladakh has little autonomy or participatory democracy
•Just a day before the Jammu and Kashmir Reorganisation Act of 2019 was passed, Ladakh enjoyed a classical three-tier administrative system. The Autonomous Hill Development Councils of Leh and Kargil read along with the framework of J&K’s special status and its bicameral legislative system gave Ladakh autonomy and participatory democracy. This also kept the interests of the tribal majority population of Ladakh secure.
•The Hill Councils, the biggest elected bodies in Ladakh, were further enabled by the State government through the State Assembly and both the institutions worked in a synchronised manner. The Hill Councils had the powers over land in Ladakh while the majority of the bigger concerns regarding land remained protected under Article 370 and J&K’s robust land protection laws. Similarly, gazetted officers were recruited through the State Public Service Commission. The District Service Selection Board made recruitments at the district level. But today, there is no Public Service Commission in Ladakh and the Hill Councils’ power to make recruitments at the district level has also been affected by the Lieutenant Governor (LG)’s presence. Technically, there also exists no law in Ladakh now that protects the land or even the jobs. The Union Ministry of Tribal Affairs had recommended in 2019 that Ladakh to be declared a tribal area but that recommendation has disappeared into thin air.
•Besides making Ladakh a vulnerable Union Territory (UT), the Reorganisation Act has taken away participatory democracy from Ladakh — first by taking away the six seats of the Members of Legislative Assembly and the Legislative Council and second by wakening the functioning of the Hill Councils. The only elected representation from Ladakh outside of Ladakh is a lone MP.
•On the one hand, there is a political vacuum in Ladakh, and on the other, there has been a tightening of bureaucratic power. The fundamental constitutional dichotomy between the LG’s office and the Hill Councils aside, the functioning of the LG and his offices has been very different from the way the institutions in Ladakh functioned earlier.
•The office of the LG and his team have their feet in Ladakh but their heart is in Delhi. The LG’s office has followed a corporate model of working — a majority of the officers are of the Hill Councils and the rest have been recruited through outsourcing agencies. The officers are overworked. There has been a focus on creating a new work atmosphere without addressing the issues that have arisen due to the transition from State to UT. These include issues of transport operators who are not able to renew their permits and the transfer and promotion of employees of higher education. There is more focus on amplifying on social media the work done rather than actual engagement with the people on the ground.
•The fact that the LG’s office has not been able to strike a chord with the people of Ladakh is best manifested by the emergence of two major groups in Ladakh: The Apex Body Leh and the Kargil Democratic Alliance. These groups represent nearly all the religious and political bodies of Ladakh. Though they initially had different demands, they now have a common agenda: statehood. They also advocate for other constitutional safeguards on the lines of what is given to the Northeast. The two bodies have mass acceptance in Ladakh. Calling their emergence as an outcome of their disdain for the UT administration would be a misnomer, though. Rather, it has dawned upon the people of Ladakh that a UT without even a legislature is nothing but a reminder of disenfranchisement and collective despair.
