ABSTRACT
Growing concerns and debate over rights of workers have been much discussed in the contemporary treatise. While, most countries have ratified all international conventions on labor standards, there still exist many who do not agree with some of them. India is one of those countries. India has only partially accepted international labor standards and is being constantly urged to adopt the rest.
This paper is one contribution to the debate of India’s ratification of International labor standards. Over the course of analysis, we seek to argue that India’s discourse on labor legislation has not necessarily been flawed merely because it has not ratified some of the conventions. The paper focuses on the 8 fundamental conventions identified by the International Labor organization. It is divided in two major sections, comprising of further subparts. The first section analyses India’s national labor legislations from the perspective of International labor standards. The second section draws a comparison between India and one of its western counterparts: The United States of America.
SECTION I: INDIA AND INTERNATIONAL STANDARDS
International Labor Organization (ILO) is a specialized agency of the United Nations, which is devoted to promoting social justice and internationally recognizing human and labor rights.[1] ILO has four strategic objectives, viz.,
- “Promote and realize standards and fundamental principles and rights at work
- Create greater opportunities for women and men to decent employment and income
- Enhance the coverage and effectiveness of social protection for all
- Strengthen tripartism and social dialogue”[2]
In furtherance of its objectives, ILO has developed a system of International labor standards.[3] These standards are set by either conventions, which are binding, or recommendations, which are non-binding. There are many conventions, and bilateral treaties which are a part of labor standards, however, ILO has recognized 8 of them as fundamental conventions, i.e. they cover the most fundamental principles and rights at work.[4] These eight fundamental conventions are:
- Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
- Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
- Forced Labour Convention, 1930 (No. 29)
- Abolition of Forced Labour Convention, 1957 (No. 105)
- Minimum Age Convention, 1973 (No. 138)
- Worst Forms of Child Labour Convention, 1999 (No. 182)
- Equal Remuneration Convention, 1951 (No. 100)
- Discrimination (Employment and Occupation) Convention, 1958 (No. 111)[5]
If we try to simplify these eight conventions, they can be clubbed together to form four major subjects, viz., Freedom of Association, Forced Labor, Discrimination and Child Labor.
Not all the countries have ratified all the conventions. Some of the major proponents of labor standards have not ratified most of them, for instance, the United States has not ratified six out of eight fundamental conventions.[6] India has ratified only four of them and left out four.[7]
This section of the paper is going to only focus on the particular country profile of India.
The section is divided in three parts. The first describes India’s profile as per ILO. The second part, will discuss corresponding laws in India for the conventions not ratified by it, and will try to understand the reason for non-ratification with the help of case studies. The last part of the section offers an opinion on India’s decision of non-ratification.
PART I: India’s Profile according to labor standards.
India has ratified 43 conventions and 1 protocol, out of which 4 conventions fall in the list of fundamental conventions.[8] The four fundamental conventions include C029 and C105, which are on forced labor, and C100 and C111, which are on equality and non-discrimination at work.[9] As for the other conventions, India has not ratified 62 conventions including 4 fundamental conventions, viz., C087 & C098 on Freedom of association and right to organize, and C138 & C182, which are on Minimum Age and Child Labor.[10]For the purpose of this paper, we will only restrict ourselves to fundamental conventions.
India on ratified conventions
India has been a strong supporter of equality. Article 16 of the Indian Constitution provides equal opportunity in the matters of public employment as a fundamental right.[11] Further, Article 39, which is a part of directive principles of state policy reads “The State shall, in particular, direct its policy towards securing-……..(d) that there is equal pay for equal work for both men and women;…”[12]
Indian legislatures have every now and then attempted to enforce substantive equality at workplace. Examples of such attempts could be laws regarding sexual harassment of woman at workplace, SC and ST prevention of atrocities etc.[13]Equal Remuneration Act, 1976[14] and Equal Remuneration Rules, 1976[15]provide for penalties in case the remuneration of men and women placed at same level is not equal. There have many more provisions, which move towards equal remuneration as an accepted principle.[16]
The Supreme Court of India in M/s. Mackinnon Mackenzie & Co. Ltd. v. Audrey D’costa and another[17]substantiated on the principle that equal remuneration has to be considered by the company and no discrimination can exist on the basis of gender.
Similarly, India has also enacted strongly on conventions accepted on bonded labor.
With respect to conventions regarding bonded labor, various legislation enactments like Bonded Labor System Abolition Act of 1976 and rules have been adopted by India.[18] India has adopted five legislations, which directly deal with contract labor.[19] It was held by the Supreme Court in Neeraja Chaudhary v. State of M.P[20], thatbonded labor legislation does not only require abolition of the activity but also rehabilitation of the bonded laborers, and failure on state’s part to try rehabilitating them would be a violation of Article 21 and Article 23 of Indian Constitution. Similar decision was also given in Public Union of civil Liberties v. State of Tamil Nadu and Ors.[21], where the Supreme Court issued directions to all states to make proper arrangements for rehabilitation of bonded laborers.
Therefore, it is clear that India lawmakers and adjudicators are acting in accordance with the ratified conventions and are implementing them without fail.
India on Non-Ratified Conventions
It is an accepted norm that merely because a convention is not ratified does not mean it will not be followed. In India, Courts on various occasions have relied on International Convention to formulate law when local laws are not sufficient to meet the ends of justice.[22]
Paragraph 2 of the ‘ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up’[23] reads:
“2. Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.”[24]
(emphasis added)
India has not ratified two of the rights under the convention i.e. Freedom of Association and Abolition of Child labor. However, India does have laws, which concern the same subjects.
Right to form association or union is a fundamental right guaranteed by Article 19(1)(c) of the Indian Constitution.[25]Various other statutes including Industrial Dispute Act and Trade Union Act provide for, and protect, the right to form association for the workers and employers.[26] However, this freedom has not been absolute. This would be better understood in the next section.
Even for the subject of child labor corresponding laws exist in India. Article 24 of the Indian Constitution prohibits employment of any child below the age of 14 in any hazardous employment.[27]Child Labor (Prohibition and Regulation) Act 1986 solidifies this constitutional right into law and specifies a schedule in which children could not be employed.
However, this raises an issue of contention that if India was willing to make corresponding laws, then what are the reasons for which India has not ratified the conventions on these two issues. This could only become clear if we can analyze where is the difference between Indian law and International Conventions, for which India refused to ratify the conventions.
PART II: Where is the Difference?
Freedom of Association
Freedom of Association, according to black’s law dictionary is the “right to be with other people for a legal reason, cause or purpose, with no bias or interference. A government may be required to allow its citizens to join a particular organization. The bylaws of the organization may yet prohibit accepting some and excluding others”[28].
There is no better way to understand the difference between International Standards and local laws than by actual conflicts. In cases where complaints are filed in front of the International Labor Organization for recommendation of international standards, the difference of laws could be understood. Some of these case studies are discussed in this section.
In 1994, All-India Trade Union Congress filed a complaint alleging violation of freedom of association, challenging new Rules and Recognition of Associations/ Union of Central Government Employees.[29]After listening to merits of the case, the committee recommended the Government to introduce a legislation affecting collective bargaining or conditions or employment be consulted with appropriate organizations. On the point of restrictions limiting all public servants to membership of unions confined to that category of workers, the committee observed that it is admissible for first-level organizations of public servants to be limited to that category of workers on condition that their organizations are not also restricted to employees of any particular ministry, department or service, and that the first-level organizations may freely join the federations and confederations of their own choosing.[30]
However, the Government did not accept the recommendations. Government stuck to its argument that civil servants enjoy high degree of job security and their legitimate concerns like wages, security health etc. are already taken care of and therefore, they do not need protection by general labor legislation to other workers.[31]It is clear from this case that Government wanted to take a strong stand for maintaining a distinction between Civil servants and other workers.
This position of the Government was made expressly clear in the recent complaint by Centre of Indian Trade Unions (CITU) against Office of Accountant General of Kerela State.[32]In this complaint, Committee requested Government to take necessary measures to amend sections 5, 6 and 8 of Central Civil Services (Recognition of Service Associations) Rules, 1964. Overall debate turned down to employees falling under the mentioned provisions also ought to be given freedom of association all related rights according to the committee.
In response to committee’s orders, Government refused to amend the discussed provisions on the grounds that government employees have an exceptionally high degree of job security and the liberty to form and join any association. Government argued that provisions been in vogue for 50 years have withstood the test of time and is necessary for ensure conduct of service associations.[33] In this recent response in 2012, the Government expressly specified that difference in civil services is the reason why India has refused to ratify the conventions on freedom of association.
This recent case puts forth the exact difference between the Indian law on association and the International Standards. An excerpt from the report can help in understanding the argument advanced:
“With respect to the ratification of Conventions Nos 87, 98 and 151, the Government reiterates that it has been its consistent view that:
- (i) it is not possible to ratify Conventions Nos 87 and 98 as ratification would involve granting certain rights to government employees against the statutory rules, namely the right to strike; to openly criticize government policies; freely accept financial contribution; freely join foreign organizations, etc.;
- (ii) this matter has been considered from time to time, the last time being in 1997, where it was decided that status quo may be maintained;
- (iii) the Government has already implemented the spirit behind these Conventions in an effective manner through the domestic laws and regulations;
- (iv) the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pensions has also taken a consistent stand that the government employees should not be covered under these two Conventions Nos 87 and 98, for the reason that they have an exceptionally high degree of job security as compared to industrial workers, in addition to the facility of negotiation machinery under the JCM and administrative tribunals for the redress of their grievances; and
- (v) the central government employees have the right to form and join any association. The Government concludes that as such it is not possible to ratify Conventions Nos 87 and 98.”[34]
(emphasis added)
It is clear from the excerpt that Government does not have the intention of ratifying the convention. Over and over India has concentrated on the fact that India does not want to give uncontrolled freedom of association, especially to the public sector employees. Contrary to India’s contention, International standards views such distinction as discrimination towards public sector employees compared with the counterparts in private sector.[35]
However, it would also not be correct to say that India is completely oblivious to international standards in this regard. Instance of this could be seen in the complaint filed by Trade Unions International of Public and Allied Employees (TUIPAE) challenging Tamil Nadu Essential Services Maintenance Act (TNESMA) along with certain other provisions.[36] The committee amongst other recommendations observed that TNESMA should be amended to ensure public servants to form associations and go on strike with only the exception of those officials who exercise the authority in the name of the state.
The Government responded to recommendations by finally amending TNESMA, which restricted public servants to agitate in support of their grievances.[37] Though even in that complaint not all recommendations of the committee were followed by the government, however, due regard was given and Indian government brought in amendment in the local legislation based on them.
Most of the freedoms of association cases that reach the International Labor Organization are of such nature, i.e., involves civil or government employees. This, essentially, is the most crucial difference between the local Indian laws and International Conventions.
Other differences include difference of weightage given to collective bargaining. For example, the Supreme Court in All India Bank Employees’ Association v. National Industrial Tribunal and Ors.[38]observed that the right to association under Article 19(1)(c) only extends to formation of an association, whereas the activities of the Union are dealt with by laws framed and those laws are not restricted by clause (4) of Article 19.[39] This was also clarified in the case of TR Rangarajan v. Government of Tamil Nadu[40] where the court held that right to strike is a legal right and not a fundamental right.
Child Labor
The International Labor Organization describes child labor as a “violation of fundamental human rights” and something that hinders the development of the child; and something that can have adverse effects on the child both physically and psychologically.[41]
The Minimum Age Convention, 1973 lays down that minimum age has to be specified by the Local Government, however, it cannot be under 15 years.[42] Further, for employments likely to jeopardize health, safety or morals of young persons, the age should not be less than 18.[43] However, the convention itself does allow the national laws to permit employment of persons between 13 to 15 years of age on light work which is not likely to harm their health or prejudice their attendance at school or any other participation in training.[44]
The second convention, which is fundamental to child labor standards, is Worst Forms of Child Labor Convention, 1999.[45] The convention specifies certain form of labor activities as worst form of child labor and seeks to protect children from them. The definition of worst form of child labor is not very narrow. Article 3(d) puts any work, which by nature of circumstances it is carried out, is likely to harm the health, safety or morals of children.[46] The convention expressly specifies that for the purpose of convention, child is any person under the age of 18.[47]It also provides that each member needs to realize the importance of education in eliminating child labor and reach out to those children who require help.[48]
Hence the conventions arguably are the bare minimum standards to be followed by a nation. They lay down 2 clear principles i.e. anybody under the age of 15 should be allowed or when a person completes his/her basic education; and secondly, no one under the age of 18 should be allowed in worst forms of child labor which are likely to harm his health or morals.
India has its own standards for child labor. Article 24 of the Constitution of India, creates a fundamental right that no child under the age of 14 could be employed in any factory or mine or any other hazardous employment.[49] Following from this fundamental right, the Child Labor (Prohibition and Regulation) Act, 1986 (hereinafter referred to as the act) comes into play. However, unlike the international convention, Indian bar on child labor is not a complete bar. Section 2(ii) of the act defines child as any person who has not completed 14 years of age[50]. Section 3 of the Act lays down that no child shall be employed in certain kinds of activities mentioned in the Schedule.[51] It is worth observing that where the Minimum Age Convention bars work by child which is interfering with his education and Worst Labor conventions sets 18 as the minimum age for hazardous work; India has only one age i.e. 14 and that too for hazardous work. Indian legislation did not bar any child below the age of 14 also to work, unless it’s a work of hazardous nature. However, post the amendment of 2006, even domestic workers and dhabas were included in the schedule essentially aiming to widen the scope of the act and offer larger protection to child.[52] Though, the central legislation on child labor does not exactly meet the parameters of the international conventions, certain states are moving towards that direction. Delhi and Rajasthan for instance have increased the age limit as 18 and employment of any person under the age of 18 would constitute as child labor.[53]
India’s constant attempt to meet the international standards could also be visible from the Right of Children to Free and Compulsory Education (RTE), 2009. This act now makes education till the age of 14 compulsory. Further, right to education has been made a fundamental right now. In this context, India is making strong attempts to meet the requirements of conventions and promote and ensure education of the children.
Therefore, even though India has not ratified the convention, it is not very far below the International Standards in this respect.
Part III: Analysis of Indian Laws
It is not disputed that India has not ratified 4 of the fundamental International Convention. However, much of the debate is around whether or not India is correct in differing from the international standards. The 2 subjects, that are different in India, as discussed above are Freedom of Association and Child labor.
India’s position about public employees or civil servants does not seem completely unjustified to us. It is worth noting that public servants have a duty to perform certain functions in absence of which, consequences could be severe. For instance, in case police goes on strike then there will be no law and order, following which major losses can be caused to the government. Even the comparatively less serious functions of the public employees like providing services like transport or telephone communication etc., have major impacts. India with nearly 27 crore people under poverty line,[54] is majorly dependent on the public sector for essential services as most people cannot afford private sector services. In such a scenario, if public service employees are allowed to strike, the harm suffered by the country will be more than the gain. This classification, therefore, is based on a reasonable nexus and is not merely arbitrary. Hence, even if there is a distinction between public sector employees and their private counterparts then, it is a reasonable distinction.
Therefore, the local laws of India are customized according to needs of the country and international conventions cannot be the best judge to decide on Indian legislation.
If India ratifies the conventions, then there can be no restraint on right of the public sector employees to enter into unions and strike. As off now, when collective bargaining is not seen as a fundamental right in India, there is a check on the power to strike of the unions. However, if unconstrained right to strike is given, the possible misuse becomes a major concern. Strike would then become a weapon, rather than a form of expression.
In light of these circumstances we do not feel that India has taken a wrong judgment call in refusing to ratify the convention. Even though not ratified, India does pay weightage to the International standards and it is visible from the text of the legislations that India has tried to incorporate principles that it could have reasonably incorporated without conflict with self-interest.
Next is the question of child labor. India has recognized large share of children are involved in child labor.[55]The present Indian law, as discussed above already recognizes a long list of professions in which children cannot be employed. Though there are still views that India should completely ban employment of children under the age of 14. Though India has not ratified the convention, it doesn’t seem very far away. India has been attempting to reach international standards. It is worth noting that India has always been facing a problem of child labor and suddenly ratifying the convention would bring about a sharp change, which would not be controllable by Indian Government. The approach, which India seems to be taking, is a gradual one. For instance, the convention on minimum age allows the national laws to permit employment of children between 13 to 15 years of age, provided it does not interfere with education of the child.[56] When India makes right to education a fundamental right, and passes legislation for compulsory education, it is seeking to achieve the same object as that of the convention.[57]
Therefore, when India has not ratified the conventions, it cannot be said that India does not intend to acknowledge the convention. Essentially, India is trying to take baby steps and move towards the convention. Child labor, being a social norm, needs time and gradual change to bring about a difference. Hence, India legislators, being the best judge of peculiar circumstances of the nation act as per the demand of the country.
SECTION II: COMPARATIVE ANALYSIS OF INDIA AND THE U.S.
India and the United States are not very different when it comes to ratification of the International Labor Standards. Much like India, United States has also not ratified the fundamental conventions, which fall under the subjects of child labor and freedom of association, among others. So far we have already seen how India differs from the International labor standards. This section of the paper will focus on a comparative analysis of India with the U.S.
The United States has not ratified 6 conventions. It would be against the fiber of fair comparative analysis, if we compare standards, which are ratified by one country and not by the other. In furtherance of our object of determining corresponding laws of countries in absence of ratification, we focus only on the 4 fundamental conventions, which are not ratified by either country. This section is therefore divided in two major parts. First part of the section compares the subject of child labor and related laws in the two countries and the second part focuses on freedom of association.
Child Labor Comparative Analysis
Child labor is a problem prevalent throughout the world. Charles Dickens in one of his most popular works, David Copperfield,portrays the perfect picture of the plight of a child employed in a factory. His work, which has touched the hearts of many, shows how the vulnerability and dependence of a child is exploited shackling his growth as an individual.[58]
Children are employed in the dangerous and often fatal working conditions in factories, industries, mines etc. Each country has its own story of evolution of child labor legislations.
The harshness of child labor increased in the U.S. with the increase in industrialization. As industries spread, most factories and mine owners preferred to hire children instead of adults. The major reasons for this were that children could be hired for lowers wages than the adults. They could also fit easily on or in between the machinery. They were also preferred over adults as they were a lot less likely to strike. Children were supposed to work in the industries in poor households, so that they could survive. During the 19th century, children worked a variety of jobs, but were usually hired by factories. This was because they were small enough to fit in between or on the machines.[59] Even children of the age four were employed as laborers. Children were also popular as labor in mines as they could fit in tunnels too small for adults.[60] However, such unsafe industrial environment resulted in illness, physical ailments and in many cases death of these children. This revealed a new, very brutal image of the industries and the child labor. This resulted in an outcry to restrict child labor.[61] Such an uprising against child labor during the19th century was mainly because of three reasons. First, there was an increase in the number of child laborers. Second, children held very dangerous jobs instead of family businesses or jobs in agriculture. Third, there was a transformation in the way ‘childhood’ was understood; these people weren’t seen as miniature adults who can be exploited by the factory owner, they were seen as young children who should play, study and be protected from the ‘evils’ of the world.[62] This led to the evolution of U.S. Child Labor law.
The major legislation dealing with child labor in the U.S. is Fair Labor Standards Act. These laws are constructed in a way to allow children to work in non-hazardous, non-exploitative environments without compromising their education. Under this Act, generally, children under the age of 12 years cannot be employed unless they work for their parents, deliver newspapers, have certain agricultural jobs or are child actors. Children between the ages of 12 to 16 can work in safe occupation on a limited schedule during approved, non-school, hours. Children between the ages of 16 to 18 can work unlimited hours in non-hazardous conditions.
In Indian context, the Indian constitution also has provisions safeguarding the interests of children as it was realized that children are the most vulnerable sections of the society. Part III of the Indian Constitution under Art.21A (right to education), Art.23 (1) (prohibition of traffic in human beings and bonded labor) and Art.24, which prohibits children under the age of 14years from being employed in any factory, mine or any other hazardous employment. Part IV of the Constitution under many provisions safeguards the interests of the children. Art.39 (e) and Art.39 (f), according to the former, State has a responsibility to secure the health of the workers and are not abused, it also has the responsibility to make sure that no person is forced into a work unsuited for their age and strength. The latter provides that it is the responsibility of the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity; it also is the State’s responsibility to protect the children from exploitation and abuse. Art.45 of the Constitution is a provision for early childhood care and education to children below the age of six.
India’s major child labor legislation is Child Labor (Prohibition and Regulation) Act, 1986. This act outlines where, how and under what circumstances children can work. The Act defines a child as any person under the age of 14 years. Under this Act, no child is permitted to work in any of the 15 occupations provided in Part A of the Schedule, nor is any child permitted to work in any workshop wherein any of the 57 processes, provided for in Part B of the Schedule, is carried on. These occupations in Part A include, plastic factories, automobile garages, catering at a railway establishment, abattoirs/slaughter houses, mines, handlooms or power looms, foundries etc. Processes under Part B of the Schedule include beedi making, carpet weaving, soap manufacture, including bagging of cement, manufacturing processes using toxic metals and substances such as lead, mercury, manganese, chromium, cadmium, benzene, pesticides and asbestos, etc.
This act also provides for the number of working hours prescribed for a child worker. Children aren’t allowed to work for more than 3 hours at a stretch. There needs to be an hour’s break given to the child after every three hours of work to rest. The total number of working hours for a child cannot exceed more than six hours including the rest period. No child is allowed to work between the 7p.m. to 8a.m. a child is also not required to work overtime or work at more than one place on the same day. According to the Act, a child is also receive a day off during the week. The Act also regulates the conditions of the work, which the children are permitted by the Act to do. “Section 14 of the Act provides for punishment up to 1 year (minimum being three months) or with fine up to Rs 20,000/- (minimum being ten thousand) or with both, to one who employs or permits any child”[63] under the age of 14 to work. The Act also establishes an obligation on the employer to provide information to the inspector regarding the employment of children. The employer is also supposed to maintain a register on the employment of children.
Recently, Rajasthan State government issued a notification increases the age bar on child labor from 14 years to 18years. So now, if anybody under the age of 18 in Jaipur is employed, it will be considered child labor. After Delhi, Rajasthan is the second state to extend the age bar to 18 years. [64] This notification also talks about the penalties on the employer of such children. “A fine of Rs 20,000 will be imposed on the employer of such children. The State government will also contribute Rs 5000 in the Child Welfare Fund for each child, which would be spent on his or her rehabilitation.”[65]
Comparing the Indian law on child labor with the American law, we see that though on the face of it, American Child Labor Legislation covers a wider range of age groups and comprehends various types of work, Indian law on Child Labor is more comprehensive. The Indian legislation takes into account the status of the child labor and tries to fix it. American law is more of a blanket provision than anything else. Only once in Section 212 does it talk about oppressed child labor. Indian law tries to cover all the nuances—prevalent and potential—of child labor. It makes the structure to check child labor systematic. Indian law also specifies the kind of occupations and the kinds of processes in a work place in which a child cannot be employed. The American legislation on the other doesn’t define, specify or describe the “hazardous” occupations in which children cannot be employed. This lack can leave a huge room for interpretation and discretion. One activity may be considered as non-hazardous by someone, when it can have adverse effects on the child employed. Indian law on the other hand, will not face this problem that much because of the specification of prohibited activities. These specifications are also not exhaustive many occupations have been added later in amendments, e.g. the 2006 Amendment added that children cannot be employed as domestic workers or servants nor can they be employed in dhabas, restaurants, hotels, motels, tea-shops, spas, or other recreational centers. The Indian child labor legislations also make the employer accountable for employing children and their treatment. They are also accountable to maintain registers with the details of all the child employees they have. This makes it easier and more efficient a process to keep track of the child employees. The American child labor legislations don’t talk about the kind of environment that should be provided to the child at the workplace. Indian law on the other keeps in mind that children being impressionable should be treated in a specific manner. Hence, it provides that the workplace environment of the child employee should be of freedom and dignity and conducive towards and facilitates his/her development as an individual.
Freedom of Association
Freedom of association is a freedom or the right to join or leave groups of one’s own choosing. A person has the right to associate with any person or a group. This is an important characteristic in labor law. This is because freedom of association furthers the concept of collective bargaining of the workers with their employer. An association of such sorts helps in increasing the negotiating power of the employee; also because, since the association represent the entire workforce and puts forth the needs of all the people, all employees are benefitted from it.
India and the U.S. each have their legislation regarding this freedom. The U.S. mainly has this freedom contained in Article 11 of the Bill of Rights. India on the other hand, contains this freedom with having a Fundamental Right to form associations along with it being included in various other Acts like the Trade Unions Act, 1926, the Industrial Disputes Act, 1947.
The U.S. has incorporated this as a policy in Article 11 of the Bill of Rights. This leads to a very limited reading of this right. In PHI, Inc. v. Office & Professional Employees Intern Union[66], the public policy of the State of Louisiana was declared as follows:
“Negotiation of terms and conditions of labor should result from voluntary agreement between employer and employee. Governmental authority has permitted and encouraged employers to organize in the corporate and other forms of capital control. In dealing with such employers the individual unorganized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment. Therefore, it is necessary that the individual workman have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor, or their agents, in the designation of such representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[67]
Part III of the Constitution of India encompasses the barest structure of this freedom. It has been incorporated, as a law under various legislation, like the Industrial Disputes Act, 1947, the Trade Unions Act, 1926 etc. It has further been solidified through case laws like All India Bank Employees’ Association v. National Industrial Tribunal and Ors[68] where it was observed that the right to association provided under Art 19(1) (c) only applies to the formation of an association. The activities of the Union are dealt with under the laws framed; these laws are not restricted by clause (4) of Art.19. This holding was further solidified and clarified in the TR Rangarajan v. Government of Tamil Nadu[69]. This case also held that the right to conduct strikes isn’t a fundamental right but a legal right. In India, freedom of association is an important labor law standard, it allows not just a more efficient way of negotiating with the employer, but also allows the employees to strike. In India, this concept is not framed as a separate law. It has been incorporated in many laws but there is no separate legislation for it. This renders a certain degree of fluidity and flexibility to this concept to be applied on a case-to-case basis. India has various Acts, which talk about the right to freedom of association used in different ways in different legislations.
Indian laws are more comprehensive, defined and structured than the U.S. law, while the U.S. laws are mainly based on discretion of the Judge. It is better to have legislations that are comprehensive and provide a well-defined structure of a concept, while being open to interpretation than having a legislation that is purely discretionary. This opens the gates for bias and arbitrariness, which can be avoided with the Indian legislations.
CONCLUSION
After analyzing the 8 fundamental conventions of the International Labor standards, it becomes certain that India is in no way trying to evade from the responsibilities or maintain lower standards. India has strongly implemented the conventions ratified by it. Even for the two non-ratified conventions, India has been moving towards adopting the basic principles that are embedded in the convention. The sole reason India is not willing to ratify the convention is because, due to the peculiar circumstances of the country, ratifying the convention will be against the interest of nation. The international standards have been prepared keeping in mind some countries. India’s situation is not such that would fall in one such country. Trying to enforce universal standards, completely ignoring subjective circumstances, is in no way just or the correct way of jurisprudence.
Comparative analysis of child labor legislations and freedom of association legislations between India and the U.S. shows that both the countries try to further the same intention and motive. Also, that though India is seen as a third world country, it has grasped the grain of these issues and made legislations which are comprehensive and inclusive at the same time being open to a certain level of interpretation. This analysis shows that India is coping with these issues well given the social and economic situations of the country.
Ayusshi Singh and Harshit Malik ,Third Year,Jindal Global Law School, O. P. Jindal Global University
[1] International Labor Organization: Missions and objectives, available at http://www.ilo.org/global/about-the-ilo/mission-and-objectives/lang–en/index.htm(last visited 23.03.2014)
[2] Id.
[3] International Labor Organization: Introduction to International Labor standards, available at http://www.ilo.org/global/standards/introduction-to-international-labour-standards/lang–en/index.htm(last visited 23.03.2014)
[4] International Labor Organization: Conventions and Recommendations, available at http://www.ilo.org/global/standards/introduction-to-international-labour-standards/conventions-and-recommendations/lang–en/index.htm(last visited 23.03.2014)
[5] supra note 4
[6] Ratification of fundamental Conventions by Countries, available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:10011:0::NO::P10011_DISPLAY_BY,P10011_CONVENTION_TYPE_CODE:1,F(last visited 23.03.2014)
[7] Id.
[8] Ratifications for India, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:102691(last visited 23.03.2014)
[9] Id.
[10] Up-to-date Conventions not ratified by India, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:11210:0::NO:11210:P11210_COUNTRY_ID:102691(last visited 23.03.2014)
[11] Constitution of India, 1949 Article 16
[12] Constitution of India, 1949 Article 39(d)
[13] India Equality of Opportunity and treatment, available at http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=IND&p_classification=05&p_origin=COUNTRY&p_sortby=SORTBY_COUNTRY(last visited 23.03.2014)
[14]Equal Remuneration Act, 1976, also available at http://pblabour.gov.in/pdf/acts_rules/equal_remuneration_act_1976.pdf (last visited 23.03.2014)
[15] Equal Remuneration Rules, 1976 also available at http://pblabour.gov.in/pdf/acts_rules/equal_remuneration_punjab_rules_1976.pdf (last visited 23.03.2014)
[16] Central Advisory Committee on Equal Remuneration Rules, 1991 available at http://www.delhi.gov.in/wps/wcm/connect/doit_labour/Labour/Home/Acts+Implemented/Details+of+the+Acts+Implemented/The+Equal+Remuneration+Act,+1976/CENTRAL+ADVISORY+COMMITTEE+ON+EQUAL+REMUNERATION+RULES,+1991(last visited 23.03.2014)
[17]AIR 1987 SC 1281
[18] India Elimination of forced Labor, available at http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=IND&p_classification=03&p_origin=COUNTRY&p_sortby=SORTBY_COUNTRY(last visited 23.03.2014)
[19] Id.
[20]AIR 1984 SC 1099
[21](2004) 12 SCC 381
[22] Vishaka and Ors. v. State of Rajasthan and Ors., AIR 1997 SC 3011; See also Gaurav Jain v. Union of India and Ors., AIR 1997 SC 3201
[23] ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up: Adopted by the International Labour Conference at its Eighty-sixth Session, Geneva, 18 June 1998 (Annex revised 15 June 2010), available at http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang–en/index.htm(last visited 24.03.2014)
[24] Id.
[25] Constitution of India, 1949 Article 19(1)
All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
….
(g) to practise any profession, or to carry on any occupation, trade or business
[26] India Freedom of Association, Collective Bargaining and Industrial relations, available at http://www.ilo.org/dyn/natlex/natlex_browse.details?p_lang=en&p_country=IND&p_classification=02&p_origin=COUNTRY&p_sortby=SORTBY_COUNTRY(last visited 24.03.2014)
[27] No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7)
[28]The Law Dictionary, featuring Black’s Law Dictionary free online dictionary 2nd Edition available at
http://thelawdictionary.org/freedom-of-association/ (last visited on25.3.2014)
[29]Report in which the committee requests to be kept informed of development – Report No 302, March 1996: Case No 1817 (India) – Complaint date: 30-DEC-94 available at http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2903403 (last visited 23.03.2014)
[30] Id. at para 328
[31] Effect given to the recommendations of the Committee and the Governing Body, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2903405 (last visited 23.03.2014)
[32] Report in which the committee requests to be kept informed of development – Report No 355, November 2009: Case No 2680 (India) – Complaint date: 25-NOV-08, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2911707(last visited 23.03.2014)
[33] Effect given to the recommendations of the Committee and the Governing Body, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:3111954 (last visited 23.03.2014)
[34] supra note 35 at para 63
[35] Id. at para 65
[36] Report in which the committee requests to be kept informed of development – Report No 338, November 2005: Case No 2364 (India) – Complaint date: 21-MAY-04, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908889 (last visited 23.03.2014)
[37] Effect given to the recommendations of the Committee and the Governing Body, available at http://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:2908895(last visited 23.03.2014)
[38] AIR 1962 SC 171
[39] Id. at para 31
[40] AIR 2003 SC 3032
[41]http://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/child-labour/lang–en/index.htm (last visited on 23.3.2014)
[42] C138 – Minimum Age Convention, 1973 (No. 138)
Convention concerning Minimum Age for Admission to Employment (Entry into force: 19 Jun 1976, available at, http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312283:NO (last visited 23.03.2014)
[43] Id. at article 3
[44] Id. at article 7
[45] C182 – Worst Forms of Child Labour Convention, 1999 (No. 182)
Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Entry into force: 19 Nov 2000), available at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312327:NO (last visited 24.03.2014)
[46] Supra note 45
[47]Id. at Article 2
[48] Id. at article 7
[49] Constitution of India, 1949 Article 24
[50] Child Labor (Prohibition and Regulation) Act, 1986
[51] Id.
[52] Child Labour Act Amendment 2006, available at
http://www.childlineindia.org.in/pdf/Amendment-2006-Child-Labour-Act.pdf(last visited 24.03.2014)
[53]Times of India, Child Labor raised to 18 years; available at http://timesofindia.indiatimes.com/india/Child-labour-age-limit-raised-to-18-years/articleshow/15713593.cms(last visited 24.03.2014)
[54]India Today: 27 crore people live below poverty line in India
Kartikeya Sharma, New Delhi, August 29, 2013
http://indiatoday.intoday.in/story/27-crore-people-live-below-poverty-line-in-india/1/304392.html (last visited 23.03.2014)
[55]Delay In Ratification Of ILO Conventions 138 And 182 By Government Of India Tarnishing Nation’s Image, available at
http://www.globalmarch.org/content/delay-ratification-ilo-conventions-138-and-182-government-india-tarnishing-nation%E2%80%99s-image (last visited 24.03.2014)
[56] supra note 42, at Article 7
[57]India – Case For Ratification Of ILO Conventions 138 And 182, available at http://beta.globalmarch.org/news/ILO-Convention-182-&-138.pdf (last visited 24.03.2014)
[58] Charles Dickens,DAVID COPPERFIELD (Hablot Night Browne “Phiz”, 1850)
[59] Child Labor Laws: Then and Now/Today, available at http://hubpages.com/hub/Child-Labor-Laws-Then-and-Now (last visited on 23.3.2013)
[60]Id.
[61] Id.
[62] Id.
[63] supra note 59
[64]http://timesofindia.indiatimes.com/india/Child-labour-age-limit-raised-to-18-years/articleshow/15713593.cms (last visited at 24.3.2014)
[65] Id.
[66] F.Supp.2d, 2007 WL 3231658, W.D.La.,2007. October 29, 2007
[67] supra note 66
[68] AIR 1962 SC 171
[69] AIR 2003 SC 3032