Tuesday, November 20, 2018


When a new Chairperson takes over one of the Tribunals, in a crucial period, there is a huge expectation. The current operations of the National Green Tribunal have turned out to be pedestrian. The quality of effort to understand the real-world problems required to provide judgements is absolutely lacking. There is an air of complete knowledge which is at best a notion. There is very little understanding of the scale of impacts and levels of impunity.  In the context of rapid climate change, unliveable levels of pollution and a tribunal mired with ignorance and problems of cognisance we need quick redressal.
Take for instance this violation taking place under the nose of the Supreme Court, the dust and noise being generated in the rebuilding of Pragati Maidan, the Indian Trade Promotion Organisation’s premium land. The erudite members first observe
32. On a careful examination of the pleadings, the documents and the submissions of the learned counsels for the parties, prima facie we do notice certain infractions in the grant of the Environmental Clearance. The first of such infractions appears to be that the preparatory works on project site had been taken up before the grant of the Consent to Establish under the Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974. This is undisputed and stands substantiated by the affidavit filed on behalf of the DPCC. The other is having commenced with the baseline studies at the site from the month of March, 2017, based on the standard ToR. Even this infraction is not disputed but the stand taken by the MoEF&CC and the project proponent is that a second EIA Report was submitted by the project proponent to the MoEF&CC on 26th June, 2017 that contained the baseline data for the months of April, May and June, 2017. This was considered and accepted by the EAC.
After having observed so, the expectation would be that the tribunal would question the appraisal authority on their legitimacy and propriety in accepting anything presented to them, charging the PCB and the CPCB for allowing violations to continue without having taken any action, seek action against all those who have been involved in violating the basic environmental laws of the land. The unfortunate conclusion one needs to draw is that the Tribunal perhaps does not understand that it is such blatant violation by the powerful that results in complaints of over 3000 activities during the recent ban and emboldens violators. The tribunal is therefore theoretically acquiesced to this violation since it blandly concludes
38. In the parting, we may observe that the project being of a huge magnitude, it is imperative for the MoEF&CC and the other regulatory authorities to ensure that each of the conditions of the Environmental Clearance are meticulously complied with by monitoring the project closely and not leave it upon the project proponent alone to submit its compliance report as contemplated in the Environmental Clearance provided under clause 11 & 12 of part B of the general conditions.
39. We accordingly direct so. Physical inspections of the project site shall be held periodically to ensure that the conditions of the Environmental Clearance are complied with both during the construction and the operational phases.
This is right in the capital. The members can visit the site to know the impacts and how it would contribute to the pollution, physically systems can be established to showcase with specific responsibilities given. Thus, the Tribunal has neither helped the environment of Delhi nor the environmental governance processes in the country. One wonders if Capital drives the Capital or norms established by the constitution?
We accordingly direct so.
So little for the direction in this order except to exonerate the violators. If one were to understand the import of this direction, it means that periodic inspection needs to be done. What great wisdom! The right to appeal under the act is provided precisely because these institutions are moribund or completely compromised. Otherwise would it have been possible for violations in front of the Supreme Court. Now the relief that has been provided to an applicant is that a direction has been given by the Tribunal to the agencies to work! Please do your normal duties.
It is further interesting to see the abject poverty of justice. In a totally different context of industry and power plant. An appeal was filed against Bhushan Steel Industries in Sambalpur District of Odisha. This company has a long list of violations and often remarked of making a periodic-table of violations. When these aspects were systematically presented the wise men dismissed saying they have a solution. Their order
“Allegations in this application is that conditions of environmental clearance have not been adhered to. If it so, it will be open to the MoEF&CC and CPCB to monitor the compliance conditions of the EC by way of a mechanism already suggested in Appeal 25/2017 Verhaen Khanna vs Union of India and Ors vide order dated 09.10.2018. The applicants may represent the said authority. One would imagine that the order mentioned above will substantiate the process and there is a remedy. The lackadaisical attitude is visible when you find this for the mentioned order “We have heard the learned counsels for the parties. The order will be uploaded on the website on or before 29.10.2018 after discussion among the Members of the Bench.”
The case discussed above are from the “substantial” final orders of this very same case.
The wise members did not waste their time on what is the kind of pollutants, in which context or whether there is a history of compliance and yet there are live problems of people affected by the project but point out to an order which has itself not been properly checked. The NGT registry also needs to have some knowledge base to check if the dates of order and the content represent the intent.
This is almost like the early days when the National Appellate Authority was giving a false impression that people are by and large happy with the environment and are not coming to the authority. The Tribunal must Act in its full power to protect the environment, livelihoods of people dependent on these ecosystems, show stewardship and not play the role of a Superintendent in office.
Such is pathetic situation with several cases of critical importance to our environment and life support systems and I have no hesitation in pointing to pedestrianism in environmental justice.
  So, we are back to square one!

Thursday, September 27, 2018

Gender and Social Protection: Brief Overview
India’s constitutional obligations on social security is reflected in the fundamental rights guaranteed to the citizens and the Directive Principles require the State Policies to focus attention on these aspects. In terms of measures undertaken by the State and the Society in preventing, reducing and eliminating economic and social vulnerabilities and eliminating poverty and deprivation, India’s achievement over its 70 years of Independence is appalling. One estimate of the adverse sex ratio of females to males suggests that the country has 63 million “missing” women and about 21 million “unwanted” girls.
The Government of India’s Economic Survey[i] tries to justify the poor status of women and social protection measures by alluding to the concept of “development time” and “chronological time.” It therefore suggests that since India is way far behind in development time, Gender indexes such as the Global Gender Gap Index of the World Economic Forum (WEF) or the Gender Inequality Index (GII) of the United Nations Development Program (UNDP) which rank countries in chronological time is the cause for the poor statistics. However, the reality is that while for political reasons several Schemes are launched, the investments are too little and spread too thin and the implementation of the schemes lackadaisical to make any tangible difference to the really poor. The fact that Rwanda ranks 4th, Nicaragua 6th, Slovenia 7th and Philippines 10th completely negates the contention of the Government and it an important question as to why and how have these countries managed to do so well despite having Gross Domestic Products which are far less than ours, economies which are perhaps not as vibrant as the Indian economy and diversity issues similar to those we have in India[ii]. The pink colour to the year’s economic survey emphasising government’s concern seems more promotional and face-saving rather than admit to the realities on the ground.
The total number of female workers in India is 149.8 million and female workers in rural and urban areas are 121.8 and 28.0 million respectively. Out of total 149.8 million female workers, 35.9 million females are working as cultivators and another 61.5 million are agricultural labourers. Of the remaining female workers, 8.5 million are in household Industry and 43.7 million are classified as other workers. There is a wide range of activities covered under other workers including those in mining, forestry etc.
The work participation rate for women declined over the last census decade and was 25.51 percent in 2011 as compared to 25.63 per cent in 2001 indicating a deteriorating situation for women to obtain gainful employment. The work participation rate for women in rural areas is 30.02 per cent as compared to 15.44 per cent in the urban areas[iii].
Social Sector Expenditure, Union Government
In Million INR
Percentage of Total
Accounts of the Union Government, No. 44 of 2017 (Financial Audit), CAG
In terms of expenditure on social services the Union Government accounts expenditure which, in turn, are grouped into three sectors, namely General Services, Social Services and Economic Services. In relation to the total expenditure, General Services showed an increase from 47.42 per cent in 2012-13 to 53.07 per cent in 2016-17 while expenditure on Economic Services has remained between 40 to 44 per cent during the same period. In Social Services, the expenditure share remained below 10 per cent for the period of 2012-13 to 2016-17.

It is very clear that a dramatic reduction on expenditure on social services, almost cutting it to less than half-the-previous year is noticed when there was a change in the Government and even until this year they have not been restored back to the 2012-13 levels.
The total revenue expenditure, which excludes any capital investments, includes expenditure on Education, Sports, Art and Culture, Health and Family Welfare, Water Supply and Sanitation, Housing, Urban Development; Welfare of SCs, STs and OBCs, Labour and Labour Welfare, Social Security and Welfare and Nutrition and Relief for Natural Calamities.
The Revenue Expenditures are required to ensure that the current services are operational and is able to pay for the staff and regular expenditures that would be required for these purposes. However one sees a dramatic reduction on assumption of power by this Government and therefore the reach to the poorer sections of the community.
Revenue Expenditure in Social Sector (In Million INR)
Education, Sports, Arts and Culture
Water Supply, Sanitation, Urban Development and Housing
Health and Family Welfare
Welfare of SC, ST, OBC and Minorities
Accounts of the Union Government, No. 44 of 2017 (Financial Audit), CAG

Thus we find the cumulative expenditure in the last two years of the previous government was higher than the three succeeding years of the present government.
Gender Budget
The first Gender Budget Statement appeared in the Union Budget 2005-06 in keeping with the other commonwealth countries which had by then introduced this concept.  Since then ten states in India have also introduced gender budgeting. However, there is no standardised nomenclature for the various schemes has made it difficult to access and assess the data.
Gender budgeting was introduced in 2005-06. Gender Budget of the Union Government discloses expenditure proposed to be incurred within the overall budget on schemes which are designed to benefit women fully or partially. Schemes relating to gender budget were bifurcated in two categories viz. Part-A, schemes in which 100 per cent budget provisions were related to women and Part-B, schemes in which at least 30 per cent of budget provisions were related to women.
The allocations and the utilisation when analysed (Budget Estimates versus Revised Estimates) indicate that there was variation ranging from-16.52 per cent to 2.51 per cent in RE as compared to BE during 2012-13 to 2016-17 under the schemes designed to benefit women. In BE 2016-17, 27 Ministries/Departments/ Union Territory Governments have made allocations for gender budget. During 2012-13 to 2014-15, expenditure at RE stage was less than that of BE. However, RE was higher compared with BE during 2015-16 and 2016-17.
In RE stage in Part A scheme amounting to  INR 211791 Million for the year 2016-17, Rs 16,000 crore (76 per cent) was pertaining to only one scheme, i.e. Pradhan Mantri Awaas Yojana, against which the actual expenditure was Rs 16,071 crore, which is an housing scheme and not wholly focussed on women. It is also pertinent to note that over 80 Schemes in Part A, the allocations were less than INR 10 million lending credit to the criticism that many schemes have been launched for political reasons and to provide a psychological effect rather than actual budgets to address the needs of women.
Poor Utilisation of Special Fund for Women’s Security
Text Box:  
1 Crore = 10 Million INR
Months after the gang-rape of a 23-year-old physiotherapy student which triggered outrage across India and led to tougher laws against rape and sexual harassment in the Budget of 2013-14 the Union Government announced the formation of a new fund for the safety, security and welfare of women with and initial corpus of INR 1000 Million.  Currently the corpus has over INR 31000. The fund which was established with such objectives lies unutilised and reflects the clear lack of seriousness of the State. Only a small proportion has been set apart for compensation of victims which amount to INR 2000 Million. The victims availing compensation under the scheme is nowhere close to the incidents of rape being reported every year. As per government data, close to 39000 case of rape were reported across the country in 2016. Even if we were to go with the conviction rate of around 25%, we are talking about thousands of victims each year.
Gender – Wage Gap
Average Gender Pay Gap
Construction and Technical Consultancy
Financial Services, Banking and Insurance
Education and Research
Healthcare, Caring Services and Social Work
Transport, Logistics, and Communications
Legal and Market Consultancy and Business Activities
* The only industry where gender pay gap decreased to -3.4% from 2015- 2016, however, the average from 2014-2016 remains at 14.7%.Source: Monster Salary Index (MSI)
The gap in male-female wages is the lowest in regular service activities, where female workers get almost 80 percent of the male wages. However, the gap is higher in casual manufacturing activities where female wages are only approximately 59 percent. It is important to highlight this aspect as sectors which have more employed female workers, such as the casual manufacturing activities, the wage gap is wider and for those activities where the presence of female workers is less, such as regular high skilled economic and financial service sectors, the gap is narrower. What this implies is that with higher levels of education and employability, male-female wage differences tend to decline.
India enacted an Equal Remuneration Act as early as 1976. The legislative measures are, no doubt, intend to ensure protection of women workers in particular but in actual practice the enforcement of the provisions of the Act have worked against the interest of a large numbers of female workers.  The rules framed do not have any penal provisions and only allows for claims. More recently the National Commission on Women[iv] reviewed the functioning of the law and suggested the following amendments which have been yet to be taken up by the Government;
 Section 5 : Under Section 5 women are prohibited or restricted by law to take up certain employment or to take up the employment during particular hours of the day. It is high time that the list of the
category of the work, wherein women are prohibited or restricted by law from taking the work is pruned down, unless the same is hazardous and threatens the life and limp of the women. Today, the women are giving effective competition to men in different sphere of activity and has proven themselves. It the restrictions are not removed or significantly curtailed, then they are likely to be challenged on the ground of discrimination and violation of Article 14 of the Constitution.
Section 7 : Section 7 relates to the officer manning the adjudicatory body. It is the first pint of contact for the aggrieved party. The Act provides for a Labour Officer to hear the complaint relating to contravention of any provisions of the Act of non-payment of equal wages. Since the complaints primarily emanates from Women section of the employees it is of utmost important that the adjudicatory authority should provide assurance and should inspire confidence of aggrieved party. For this reason, the Labour Officer who has been empowered under this Section should be a women with background of Labour practices.
The power of filing complaint should not be confined only to the aggrieved party. It has to be broad based on any information relating to contravention of the Act must be entertained. For this reason, two changes are necessary under Section 7. Firstly, if any person including voluntary organisation reports of any contravention of provisions of the Act, the same should be treated as a complaint and the adjudicatory authority should dispose of the same as per law. Secondly, if the Labour Officer or whosoever, is the adjudicatory authority get some information or knowledge about any practice by the employer which is in contravention of the Act, then it should have power of registration of complaint upon its own knowledge and information. These amendments are also necessary as the employees are likely to be reluctant to lodge any complain against their present employer, least they face the wrath of employer.
Section 10 : Providing a penal clause against the person who does not comply with the order made by the officer under Section 7 (1).
Section 15 : Section 15 deals with special benefits given to the women. It is necessary that the explanation be incorporated in the Section, wherein it should be provided that the special treatment should never be detrimental to the interest of the women.
One of the setbacks on equal remuneration is highlighted in a recent judgement in which Supreme Court remanded the case of Chemical Mazdoor Panchayat vs Indian Oil Corporation for a fresh decision by the High Court of Gujarat. The original decision under appeal, Indian Oil Corporation vs Chief Labour Commissioner – raised a crucial question of the interplay between the constitutional principle of equal pay for equal work, and the statutory guarantee contained in Rule 25(2)(v) of the Contract Labour (Regulation and Abolition) Rules of 1971, framed under the Contract Labour (Regulation and Abolition Act) of 1970[v].
Before the High Court of Gujarat, the issue, briefly, was whether various contract labourers, including cooks, sweepers, and gardeners, who were working in the premises of the Indian Oil Corporation, were entitled to equal wages, on parity with permanent employees.
The Gujarat Mazdoor Panchayat – the representative union of the workmen – made their first reference to the Labour Commissioner on this issue in 1994. After a few rounds of litigation, in 1992, the Labour Commissioner found that the work done by the contract labourers, and the permanent employees, was “same or similar”, and consequently, Rule 25(2)(v) of the CLRA Rules was applicable. This order was challenged, and eventually, in 2013, a division bench of the Gujarat High Court issued notice, observing that the Commissioner was wrong in taking into account only the nature of work:
“… if only apparent work is to be seen without ignoring the quality and capability of the person concerned, based on his qualification, experience, etc., such would frustrate the basic requirement. The essential purpose of Rule 25 is to ensure that there is no exploitation by the principal employer by engaging person through contract labourer, but that does not mean that the other requirements of qualification, experience, quality of work, nature of the work, responsibility and the accountability for the work are to be done away.”
Subsequently, on 8th May 2014, the High Court set aside the order of the Labour Commissioner, holding that the source, mode of recruitment/appointment, nature of work, value judgment, responsibility etc. – and not only similarity in designation or quantum of work – was relevant for equating two sets of employees.
 In this case, the regular employees were recruited through a written examination, and were required to have certain qualifications, which the contract labourers didn’t. Consequently, there was no obligation of equal pay. It was against this judgment that the labour union approached the Supreme Court, and the case – as observed above – has now been remanded on the question of the status of the contract labourers.
Allocations for Weaker Sections
Government of India started to make separate allocations for the development of Scheduled Castes (SCs) and Scheduled Tribes (STs) from the financial year 2011-12 with instructions to the not to re-appropriate the provisions. Although there was no major variation at RE stage in all the schemes put together, it was noticed that in 22 schemes for SCs and 19 schemes for STs, the amount was reduced ranging from 50 to 100 per cent at RE stage in contravention of instructions.
 Further, out of total 256 and 261 schemes for welfare of SCs and STs, there were no budget allocation in 36 and 42 sub-schemes respectively at BE stage during 2016-17.

Draft Social Security Code 2018
The draft Social Security Code[vi] is the newest intervention the Government has initiated. The problem statement as identified by the Government is that;
1)      Biggest lacuna is that the current system leaves almost 90 percent out of the folds of any social security. Unorganized sector workers are largely excluded.
2)      The schemes have very limited outreach.
3)      There is large scale fragmentation: there are multiplicity of laws, policies, schemes and agencies.
4)      The existing wage and number thresholds creates perverse incentives for the employers to shy away from joining the system thus resulting in artificial exclusions and distortions in the labour market
While the objectives of universal coverage is stated as prime the draft code has several lacunae which will eventually mean a more cumbersome processes for the worker while it will ease compliance for the employer. The draft code claims of extensive participation, for instance in its preface it states, “A first draft of Labour Code on Social Security was published and put in the public domain on 16th March 2017, for comments of stakeholders. A number of workshops and discussions were held with various stakeholders, such as Employers’ organisations, Worker’s organisations, State Governments, NGOs, representative of unorganized workers law practitioners etc. We were very encouraged with the feed-back and response from all the stakeholders. We received extensive comments on various provisions of the draft code, which ran into almost 3000 pages. In addition, we also received technical inputs from the International Labour Organisation (ILO). It was an arduous task in going through all the inputs and refining the draft of the Code accordingly.
As conceded by the latest version, this code is yet to undergo a thorough scrutiny of a legal drafting which will be done after completing the tripartite and other consultations and hence may not in the final text reflect the sentiments of the various stakeholders.
The Labour Code on Social Security is an attempt to simplify, rationalize and consolidate the hitherto fragmented laws to make them less complex for easier comprehension implementation and enforcement. Basic core principles that have been incorporated are - (Progressive) Universalization to entire workforce; Integration of fragmented schemes; Decentralization of administration; Rights based approach and Single window compliance.
The Code aims at universalization of Social Security and as such the definition of employee covers all kinds of employment including a part time worker, casual worker fixed term worker, piece rate/commission rated worker, informal worker home-based worker, domestic worker and seasonal worker. The Universalization, however does not mean that all the workers proposed for coverage under the code would be covered from Day 1, as the code provides the flexibility of progressive extension of coverage. Thus the meaning of universal coverage has been undermined in its definition itself by creating exclusions from the beginning. The code also enables Union Government to centralise the finances by enabling any current surplus in a Fund, is to be transferred by the State Boards to the Central Board for professional management of investment of the Scheme Funds. This is to ensure that economies of scale may be utilized to the maximum possible extent and good return could be fetched on the investment. The Central Board has been provided the responsibility to manage the investment of the Funds mentioned above on behalf of the States in accordance with the investment pattern notified by the Central Government. Thus it seems a mechanism for finding investible surpluses from what is primarily meant to meet the crying needs of the workers. The code proposes for confiscation of unclaimed amounts and credit of the EFPO to National Stabilization Fund, if no claimant could be found even after inviting claims and objections in respect of such amounts thus enabling itself to use money in the manner it decides.
It further envisages that like the levy of Building and Construction Cess, on all construction works above a certain threshold the provision of Cess has been kept only as an alternate mechanism to collect contributions (of employers / employees). The Government does not intend to levy cess on any sector, as the normal Employer’s and Employee Contribution levied is expected to be sufficient to meet the Social Security requirement. However, it is understood that certain sectors are very prone to informality, due to which number of employees are not declared by the employers, leading to their exclusions from social security. In order to handle such sectors, the powers to levy cess has been kept, so that in sectors where employers are escaping their obligations, the concerned workers can be protected by levy of cess, and providing their contribution from this collection of cess. Thus the code concedes that the same issues which have been plaguing the system will perhaps continue and that the consolidation of all the funds so far collected to be used for specific category of workers will be bundled into a large fund of the State.
The obligation to register a worker falls on the employer, except for own-account worker, who needs to register himself. The Draft code prescribes penalties for employing an unregistered worker beyond a specified period. However, if the employer fails to register the worker within the specified time period, the worker has been provided with the facility of registering himself under the provisions of the code. The code thus puts the onus on the worker and requires all (active) workers to be registered under the Universal Registration system which will be based on the now controversial Universal Identification Scheme (Aadhar) which is contested vehemently in the Supreme Court on issues of privacy. The protocols will be decided by the Central Board – for universal applicability and portability of registration but the actual registration in the field is expected to be performed by Local Bodies (i.e. Gram Panchayats / Municipal bodies). The State Boards which will have oversight of the process is enabled by the code to have PPP arrangements to provide facilitation centres for registration services thus privatising the role of the State.
The funding of social security under the Code is a combination of Employer / employee funded and Taxpayer funded thus providing leeway to the employers and placing the burden on common people. The code expects to scientifically classify and identify such workers who belong to poorest socio-economic category for whom Code envisages the Social Security be taxpayer funded. Workers, at the time of registration are expected to provide data about their socio-economic parameters and based on which, the categorization will be automatically determined.
A three tier Social Security Administration Structure proposed with tripartite representation in all these bodies drawing representatives of workers, employers and Government.
(a) National Social Security Council headed by the Prime Minister to be the Apex Social Security Organization in the Country for overall regulation and monitoring;
(b) Central Board of Social Security at Union level and
(c) State Board(s) of Social Security at State/UT level for implementation of the Social Security framework.
In addition functions have been prescribed for local bodies (panchayats / urban local bodies) of registrations and facilitation.

The new social security structure created through this code will replace the entire present setup which means that EPFO and ESIC will cease to exist in the present forms. However, they would cease in only those states where the new set up has been notified and would continue as such in the remaining areas.
Thus it will cause more confusions for workers in terms of even the existing workers who are covered under those schemes.
Nine types of social security described in the Convention in the ILO Convention 102 is aimed by this code. Social Security Fund in each State is to provide for schemes such as Pension, Sickness Benefit, Maternity Benefit, Disablement Benefit, Invalidity Benefit, Dependent’s benefit, Medical Benefit, Group Insurance Benefit, Provident Fund, Unemployment Benefit and International worker’s pension benefit. However, it may not be taken that code proposes to provide each of these to every worker from the day 1. We will have to work in a phased manner given our budgetary constraints. There is no prescribed time-table for universal coverage.
Even though the code claims that there is no exception, but Schedule – I has been provided to specify class of workers / establishments that are excluded from certain provisions of the Code. This exclusion will be applicable only to such workers who can avail normal / regular security available to government servants (e.g. workers on whom CCS Pension Rules apply). Further, This Schedule – I can also be used for gradual phase-wise implementation of the Code. For Employers who can provide PF and Gratuity system managed by their own, there are provisions for permission for Alternate Coverage Mechanism.
The code as it exists also has the threat of large scale privatisation of the Social Security Systems through the provision for licensing of Intermediate Agencies in the fields of Fund Management, Point of Presence, Service delivery, Benefit disbursement, Record keeping and Facilitation for enabling PPP system in administering social security. These agencies are to be agents of the Board to deliver certain services without any accountability as the ultimate liability and responsibility of providing the services and benefits remains that of the Boards.
The existing situation is dismal and the emerging scenario on Social Security in India portends greater threat. Unless concerted efforts by the State and the Society are not forthcoming and implementation issues are not ironed out, the situation of workers in more vulnerable sectors such as Mining, Forestry and Household work would be far more difficult to address and redress.

[i] http://mofapp.nic.in:8080/economicsurvey/
[ii] https://feminisminindia.com/2017/11/08/global-gender-gap-report-2017/
[iii] Census of India, 2011
[iv] http://ncw.nic.in/frmReportLaws23.aspx#2
[v] https://indconlawphil.wordpress.com/2017/04/09/equal-pay-for-equal-work-statute-and-constitution/
[vi] https://labour.gov.in/sites/default/files/Letter_of_Social_Security_Code_2018.pdf