ABSTRACT
The need for revisiting Indian Government’s policy on social security gains immense especially to the workforce of unorganised sectors. Despite the lengthy history of Industrial Jurisprudence, its scope is apparently limited towards the unorganised sectors because of the very fact the labour force of unorganised sectors are ‘per se’ unorganised and therefore remain outside the domains of the State’s intervention. This paper highlights the politics of social security in India in Globalised context and examines the present status of Industrial Jurisprudence as the means for pursuit of Justice and fairness to the workforce of unorganised sector. This is indeed the need of the hour when more and more debates arise on direct flow of Foreign Investment into service sector, which has a huge workforce that falls within the ambit of unorganised sectors.
‘Justice’ has been the central focus of all philosophical contemplations centered upon Humans as individuals, group or society in however forms they are organised. Ensuring Justice has been identified as the core function of State across civilisations. In a Democratic System, the means and the ends of the State is all about “Justice” – Social, Economic and Political representing the dynamics of Individual and Family, Market and the State as “organised” categories. Historically, ‘family’ has been the basic unit of society and has been the representative unit of the community. This mean that the values, mores, customs of the society will necessarily have its own impact of lesser or greater degree on the family and individuals as well. If security is the pursuit of individual, then in search of security, he/she capsules her/himself with the identity of the family and family identifies itself with the community and likewise community subscribes to the Society and ultimately the State. Hence the economic interest of individuals and families are part and parcel of the economic interest of the State. This underpinning also going by classical thinkers of western tradition applies to security and Justice as well, that makes State as the means and end for the pursuit of Justice and Security.
In this era of Globalisation when States are compelled to integrate with each other through their markets and political boundaries are mostly redefined as economic boundaries with the advent of regional cooperation such as the ‘Euro Zone’ of EuropeanUnion and ‘NAFTA’ (North American Free Trade Agreement) of Canada, Mexico and the Unites States of America. Under this new regime of production of goods, valuation and marketing mechanism, human activities ranging from production and distribution of goods, from distribution to realisation of the utility of public goods have undergone a huge transformation.
The conventional understanding of the factors of production namely Land, Labour and Capital itself is under a huge identity crisis in this globalised era that forms the basis of this research exercise. As understood, ‘production’ meant the synchronised utilisation of Land, the basic resource, capital and labour for “production”. Labour has been the vital linking factor between Land and Capital within a stipulated area or a political boundary. This fundamental phenomena has been the key for understanding Labour Economics and Industrial Jurisprudence that it the entire process of production being regulated by the State, the welfare of the Labourers stand automatically protected by the State as one of its prescribed primary function- Industrial Jurisprudence. Now that Globalisation as a movement had made the movement of labour force across the globe as “restricted” phenomena in the name of outsourcing, simultaneously ushering the rapid movement of capital across Counties has resulted in the enormous rise of conflicting interests of between Industrial establishments and labour forces. What requires a huge ‘over head charges’ for manufacturing a particular product in an advanced country with its own labour legislations and minimum wages, the same could be produced with almost one-tenth of its price in a developing country with its vast army of unorganised workforce completely outside the scope of Labour Welfare. This is the case in India too, with its vast human resources confined as numerous unorganised labour sectors. It is at this point, the mandate of Constitution and its core principle of Justice and fairness towards working class in the form of Industrial Jurisprudence both as an “idea” and organisation gains immense importance. Equally important is also brining these unorganised labour forces under the purview of the ‘Industrial Jurisprudence’ of the Constitutional State.
Industrial jurisprudence is an outstanding legal development of the 20th century. It is based on the principles of social justice, which is integral to the constitution. The most spectacular event towards the recognition of industrial jurisprudence was the establishment of the International Labour Organisation[1] which aims at securing the workers a decent standard of living in conformity with International standards, to the possible extent of economic conditions in a country may permit. In other words ILO standardises certain obligatory parameters of Labour Welfare across States.
The Role of Judiciary in Industrial Jurisprudence
The source of industrial jurisprudence takes recourse not only from the myriad legislations on labour and industrial legislations but also from the large number of industrial law matters decided by the Supreme Court and High Courts. Since the Canons of Justice is universal, these decisions by the Courts of Justice, rather than Courts of Law have their spiral effect on country’s population consisting of industrialists, workers and their families- their direct dependants. This branch of law modified the traditional law relating to master and servant derived from theological discourses. While contextualising an institutional system of enforcing Industrial Jurisprudence, modern State had to necessarily give away its old theory of ‘laissez faire’ and had to anchor upon upholding the ideals of Law, Liberty, Fraternity and Justice , administered through the philosophy of ‘freedom of contract’ in the larger interest of the society. The foundations of “Freedom of Contract” as legally translated in Industrial Jurisprudence essentially aim for the development of harmonious and amicable relations between the workers and employers.
In India, the Supreme Court has played a significant role in the evolution of industrial jurisprudence since Independence. It has not only made a distinct contribution to the law relating to industrial relations, social security and minimum standards of employment but also have innovated and devised new strategies for providing access to justice to the weaker section of society. It is not mere administration of Justice but also accessibility to Justice. By and large, it is this in accessibility that determines the ‘Delay and Denial’ of Justice. It is in this context, the court has acted as the protector of the working class both individually and collectively and often played the role of legislator whenever labour legislations are silent or vague on specific issues of administration of Justice, the cardinal limitation of delegated legislation. In fact most of the labour legislations and amendments therein have been made in response to the call by the judiciary. The industrial society all over the world has been moving during the present century from contract to status and this status is a politico-socio-economic juristic status[2] and India is no exception. In this context defining and operationalising “Social Security” arise as a vital idea and function of the welfare state.
Significance of Social Security
Social security maintains social cohesion and defies attempt of social conflict in highly individual society. A social security system aims to include an individual in society through measures or schemes implemented by the state to show solidarity towards such an individual. The successful implementation of the right to social security reinforces its significance on maintaining social and economic stability.
The quest for social security and freedom want and distress has been the consistent urge of man through the ages. This urge has assumed several forms, according to the needs of people and their level of social consciousness, the advance of technology and the pace of economic development. From its modest beginnings in a few countries in the early decades of the last century, social security has now become a fact of life for millions of people, throughout the world. Social security measures have introduced an element of stability and protection in the midst of stress and strains of life. It is a major aspect of public policy and the extent of its prevalence is a measure of the progress made by a country towards the ideal of a welfare state. The importance of social security has been emphasised by different political leaders, social reformers and economists in different ways. Today the philosophy of the concept is universally acknowledged as it has been accepted in principle that social security is the aim of all social welfare activities of all countries following different ideologies, different social and political structures and different economic policies. Ways adopted by the various countries may be different, but the purpose is the same everywhere. The concept of social security has united them all. Although the term was made popular only during the 30s of the last century, the philosophy behind the scheme was quite popular much before[3].
With the breakup of the joint family and village life, childhood, maternity, invalidity, sickness, old age and death of the bread-winner become formidable problems requiring best and just solution through proper mechanism. In such state of affairs the devices which provide adequate security are considered to be the forms, measures or schemes of social security[4]. Before the industrial revolution the requirements of social security were met by institutions like the joint family, church, guild and caste. The family was the first line of defence and it constituted the original cell of security: in fact the prototype of the highly developed modern social security institutions[5]. In order to deal with the aforementioned insecurities, there came in due course social legislations like Payment of Wages Act 1936, Minimum Wages Act 1948, Unemployment Benefits, Industrial Disputes Act 1947, Maternity Benefit Act 1961, Factories Act 1948, Payment of Bonus Act, 1965, Payment of Gratuity Act, 1972 Employees Provident Funds Act, Employee’s State Insurance Act 1952 and so forth.
Liberal Democracy and Social Security
Indian public policy since independence has been an admixture of populism and pragmatism. The welfare of the working class has been as seen in the successive five years plans has been the point of convergence of both the afore said populism and pragmatism. A shift in the economic policies in India was made when Indian economy faced a very difficult situation during 1990-91, on the domestic as well as on external front. There was a high rate of inflation (an annual rate of 13%) along with the deficits in the domestic budget and large indebtedness. India took a bold and far reaching step by formulating the New Economic Policy, which adopted Liberalisation, Privatisation and Globalisation (LPG) as cardinal principles of economic development[6]. Liberalisation, Privatization and Globalisation are the three economic reforms, which have revolutionised developmental efforts in all the developing countries including India in recent years.
The last two decades may be said to be the privatisation decades. Government enterprises set up with the advent of socialism in most developing countries and which performed badly due to various reasons were given away to the private sector considered as more effective managers of commercial establishments. Today, all over the world, major industrial establishments are established as private sector projects only. It is therefore necessary that the government should withdraw from the sectors in which it lacks competency. If a country has to develop economically, it has to become part of the global economy so as to share the fruits of knowledge and technology from the developed countries. Ever since India accepted new economic reforms for the development of its economy, a number of arguments have been raised for and against liberalisation, privatisation and globalisation. There is a school of political thought which advocates that liberalisation, privatisation and globalisation mean abandonment of social justice. It is also argued that promotion of liberalisation, privatisation and globalisation will upset the basic structure of the Constitution of India. Under such a situation, if the State the ultimate authority of Modern Governments needs to act lest, the common man would be forced to rise in revolt, which in turn, would lead to catastrophe. India is being devalued through liberalisation, privatisation and globalisation that have posed a threat to India[7].
Impact of Globalisation on Social Security Measures
Globalisation is undeniably a capitalist process which is certainly not a pro poor movement. In recent years, there has been a fresh stage of public protests against liberalisation, privatisation and globalisation. This activism, however, stems from a wide range of affected interests[8]. Increasingly, sections of the working class in industrialised countries have been voicing resistance to aspects of liberalisation , privatisation and globalisation that have created many adverse impacts in the matters of employment relations, trade union activities, job security, social insurance scheme, wage structure, labour exploitation etc. This has inevitably led to labour unrest in India resulting in many numbers of strikes threatening industrial harmony. However the current process of globalization is generating imbalanced outcomes, both between and within countries. Seen through the eyes of the vast majority of woman and men globalization has not met their simple and legitimate aspirations for decent jobs and a better future for their children. Many of them live in the limbo of the informal economy without formal rights and in a swathe of poor countries that subsists precisely on the margins of global economy.
Reacting positively to the emerging global economy, India for its past has started moving towards open market economy. Towards that end, it has initiated steps liberalizing the economy to facilitate entry of foreign investment. Simultaneously it has proceeded to induct reforms in phased manner in different segments more particularly in industrial and service sector to make them highly competitive. The process of liberalization having come to stay with the satisfactory completion of first phase of economic reforms, the government is presently contemplating reforms in other sphere as well, especially in laws governing work force in the industrial sector. Concern of the government for changes in labour legislations is on the higher side in view of the reality that foreign investment is directly related to such reforms. The labour legislations as on date are pro workmen, leaving no scope for freedom to parties to determine the terms and conditions and eventually they are more prone to resistance from the foreign investors. Under these changed circumstances, attention is to be focused on the impact and responses that are necessary to improve the competitiveness of labour to ensure increasing opportunities of employment, to ensure at least the minimum level of protection and welfare for workers in all sections of the economy – organized as well as unorganized.
It has been argued repeatedly, including by the ILO, that to be sustainable and to bring positive outcomes for all, globalization needs a new regulatory framework and that this requires the introduction of appropriate governance structure at the international level. However, as there is no consensus on how exactly to proceed on these matters, few concrete steps have been taken in this direction, and few will be taken, in all likelihood, in the foreseeable future. As a consequence, the international governance regime is (and probably will remain for some time) under-institutionalized, and the task of protecting societies from the potentially undesirable consequences of globalization still falls heavily, if not exclusively, on national-level institutions – however weakened these may be at the moment. Hence, the importance and relevance of globalization under the changed labour scenario is well significant and hence there is a need for restructuring the system, keeping in view the constitutional mandate, the ILO’s Conventions and recommendations so as to ensure the socio-economic justice for the workforce who are casualised and contractulised under the liberalized setup.
Issues for Contemplation before Policy Makers and Academics
Among the labor force the unorganized that constitute 92% needs more attention. Of the issues concerning the interest of those belonging to unorganized sector the issue of social security assumes more importance especially in country like India. It is difficult to identify and demarcate the unorganized sector that does not even have trade unions or institutional mechanism to fight for them. So, there is a need to define and demarcate the unorganized sector rather than saying that it is the residuary of the organized sector. It is also necessary to explore as to what changes are effected due to Globalization. There is a pressing necessity to make a detailed study about the quantum of unorganized work force and the enjoyment of social security measures either in full or in part as envisaged in the Convention and the Recommendations of the ILO (International Labour Organisation) as well the constitutional mandate. Now the time has come to evaluate the Unorganized Workers Social security Act, 2008 and to suggest ways and means for the effective implementation so as to improve the standards of unorganized sector. Organizing the unorganized sector is a huge task that needs the will of the State in accommodating them within the scope of State’s intervention. What is therefore the need of the hour is institutionalizing Informal Sectors and then contextualizing them the twin tasks before academia and administrators.
Conclusion
In western countries intrusion of market economy has given a death blow to their models of welfare state for implementing the ideas of welfare state. Consequently, the eastern part of the world, India with no exception drawing heavily the inspirations for the foundations of modern democracy and welfare state are per se in a state of identity crisis with competing and clashing interests between “Thinking Globally and Acting Locally”. What we witness today the retreat of State’s intervention in the day to day life of the common man and the rise of the diktat of market forces which is diametrically opposed to the foundations of Nehruvian model of Indian Political Economy , with its ‘mixed economy’ upon which India’s political system rests upon. Hence the ramifications and repercussions of this new wave of integrating Indian families, communities and society with global market have indeed visibly resulted in the growing divide between land, labour and capital as they are externally integrated that are supposedly to be done internally. One such impact is the sporadic uneasiness against ‘Foreign Direct Investment’ (FDI) in retail sector and there are as many other issues did not get highlighted to the mainstream media such as the status of unorganised Agricultural labourers under corporate and contract farming systems, the status of collective bargaining of workers in Special Economic Zones ( SEZ’s), the social security of outsourced employees in BPO’s, the status of weaker sections and their interests in service sectors where FDI is allowed such as in Railways. Fostering an all inclusive growth through building models of social, political and economic inclusive systems are thoroughly incomplete without pondering these issues of vital importance.
With the advent of FDI in retail markets and more Capital flowing in the Country for establishing Industries that would obviously demand a higher degree of unskilled labour forces, it becomes the obligation of the State to protect its own people. They may not have a powerful lobbying power, their voices very meek and unheard yet, the legal and moral duty of contemporary administration would be totally incomplete without fine-tuning its Industrial Jurisprudence and the political will for enforcing its Social Security Policy more vigorously than ever before.
References
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Breman, Jan, “A footloose proletariat: Informal sector labourin the rural and urban landscape of West India,”Manuscript (Amsterdam: 1993).
Cameron, David, “Social democracy, corporatism, laborquiescence, and the representation of economic interestsin advanced capitalist democracies,” in John Goldthorpe(Ed.), Order and Conjlict in Contemporary Capitalism(Oxford: Oxford University Press, 1984). pp. 143-180.
Centre for Monitoring Indian Economy (CMIE), BasicStatistics Relafing to the Indian Economy, Vol. 2(Bombay: CMIE, 1993).
Oommen, M. A., Inter State Shifting of Industries: A Case Study of South India, Manuscript (Trichur: University of Calicut, 1979).
Przeworski, Adam, Capitalism and Social Democracy (Cambridge: Cambridge University Press, 1985).
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[1] . Chandra Mahesh, “ Industrial Jurisprudence,” (Bombay : N.M. Tripathi Private Ltd.) 1976 edition, p. 20
[2] . ibid
[3] . Dr. Vivek Ranjan Bhattacharya, Some Aspects of Social Security Measures in India (1970) p. 89
[4] . V.B. Singh, Industrial Labour in India, 1963, p.80
[5] . ibid at p.79
[6] . Krishnan Gopala (K.C), “Legal Economics”, (Lucknow: Eastern Book Company) 1988 edition, p.425.
[7] . Justice Krishna Iyer V.R, “ Globalisation a threat to India”, The Hindu dated on December 27th , 2001, Coimbatore Editiion.
[8] . Choudhury Supriya roy, “ Globalisation and Politics,” The Hindu dated on September 4th, 2001, Coimbatore edition.
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