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The piece calls for increased attention of legal thought to labour institutions today, as part of a broader progressive agenda.
An important lesson for India and most parts of the world from this pandemic is one that we must glean from the story of labour during this crisis. The plight of the migrant labour, the situation of app-based cab drivers who are denied the status of labour, and broadly, the impact of the crisis on India’s staggeringly high percentage of the informal workforce is coming to the fold.
Recently, commenting on the stories coming out about migrant labourers and their families walking home, P Sainath peevishly implored the amused citizenry to “know your country”. In that same sentiment, what follows is an attempt to excavate—as I see it— the pressing task for legal thought: Make Labour Laws “Cool” Again!
I describe this task through a foreground and a background theme. The foreground theme is the assault on labour in this country seen, not from a rights-based approach, but, a political economy approach, and the background is the task of legal thought in addressing this assault.
The Foreground Theme
State governments of Madhya Pradesh and Uttar Pradesh have recently announced massive relaxations in labour laws under the self-serving purpose of helping businesses to recover from the shock of the complete lockdown that was imposed during the pandemic. Apart from a deafening blow on trade unions and the bargaining rights of the labour (or whatever is left of it), these relaxations are also aimed at occupational safety.
Set this trend alongside the debacle in Karnataka, where migrant labour was restricted from travelling back to their hometowns, at the behest of a builder lobby. These trends of governments assaulting labour at the behest/in the name of special interest groups of the business/employer class is not new. The 202-year-old Marx would say, “I told you so!”
These disturbing trends require to be situated within a broader shift to understand not only what has happened, but to an extent, predict what is to come. The short history of labour laws as part of the vision of Nehruvian socialism is important to understand the shift that has taken place in discourse as well as in political economy of industrial relations since 1991 and liberalization.
The dominant discourse across the world with the advent of neo-liberalism is that labour costs ought to be reduced for increased productivity. As such, from a time when trade unions and the labour force through struggle had achieved a formidable spot in the political economy of production, the trend now is to diminish the gains of these struggles.
Labour economists have excavated (and at times contributed to) the conditions that favoured these shifts. The argument for India goes something like this: labour laws are the concern of the State as well as the Centre being situated in the Concurrent List, and as such there are about 40 Central Laws and 100+ state laws that govern the field.
These compliances involved in maintaining a permanent workforce, forces business to remain small and informal (outside these regimes). Easing of the rigidity of these laws would benefit businesses and spur economic growth. Some notions that could not be messed with were: labour must be free and they must be paid minimum wage, and guaranteed social security and occupational safety. Remarkably, here ends the concern of the constitutional lawyer.
Even before 1991, there began a trend that businesses embraced to escape the liability under these laws—an increased reliance on contract labour and the informal workforce. As the labour laws of old survived through the first three decades of liberalization, the reliance on contract and informal labour increased. To be clear, today the informal workforce in this country amounts to about 90 per cent of the total workforce.
Come the present regime which has an avowedly “pro-business” vision, massive labour law reforms have been ushered in. With the clarion call of “simplification” of labour laws in the name of “Ease of Doing Business”, four Codes are under consideration. They introduce massive structural changes under the garb of simplification. Aside from the assault on trade unionism, these Codes would institutionalize the trend of reliance on contract labour.
The idea of flexible contract employment that took birth during the Vajpayee Government, and killed due to trade union pressure during the UPA, has been resurrected by this present dispensation. The structural change that these Codes bring about completely shifts the power relation in the production system towards the employer, and away from labour. This is worrying because the gains of many years of struggle will be wiped away, and we are likely to see more disturbing stories about gas leaks, the suffering of the precarious workforce, and increased inequality in society.
The Background Theme
I suspect (without any training in anthropology) that some of the interest and attention that the stories of migrant labour and the precarity of daily wage labour have received is thanks to the lockdown. It is a cruel irony of the lockdown then, that the luxury of free time may have been the cause of empathy towards the condition of unfree labour. The question is how did this all of this happen, and what ideas have led to this situation?
To be sure, there are votaries to these ideas about the depletion of the role of labour in the production process. According to dominant discourse, “Hire and Fire” is a bad thing, “Flexible” labour is good. Yet, as Roberto Unger would claim, flexibility is but a euphemism for hire and fire. Rigidity of the labour laws due to the large number of labour legislations is a claim that requires to be understood in the background of the informal workforce (90 per cent) that are outside these regimes. The argument that businesses have not taken off in this country due to the rigidity of labour laws is then suspect.
The rights-based discourse of Constitutional law is just not enough to excavate these concerns. The exodus of students of law to the fields of competition law and anti-trust, intellectual property, arbitration, and employment law has done great damage to the concern that should inform the task for legal thought today.
Competition law’s consumer-welfare standard extinguishes the concern for the adversely impacted workers, contractual labour with arbitration clauses privatizes remedies, and intellectual property law ensures that technological innovation is driven by market interests of the firms and producers leading to automation and replacement of labour.
On the other hand, labour law continues to be read in law schools with lesser interest than this article would be! All these fields which have a direct impact on labour markets have no concern from them, and the law schools, in turn, have no concern for labour law. To be clear, I have heard of a few remarkable professors in a few law schools who are doing important interventions in the academy in the field of labour law.
Yet, we need more academicians, lawyers, and students taking increased interest in these developments in labour law and contributing to its structuring in a manner that does not exacerbate, but attenuate existing inequities in society. And then we need some more!
What is then the task for legal thought today? Does legal thought have anything to do amidst these questions of politics and economics? Absolutely. There is a large percentage of unorganized/informal labour force in the economy that are fashionably referred to as “gig workers”. However, I prefer the terminology that best describes their condition—the precarious workforce.
This precariat is abandoned to extreme inequality and economic insecurity owing largely due to the institutions that are created to preserve special interest groups. Law necessarily creates, shapes, facilitates, and entrenches the conditions and institutions that allow for this to happen. No progressive agenda can have any transformative outcome without the concern for and action on behalf of the precariat.
Institutional reimagination is as much the task of students of law as it is the concern of political scientists and economists. If the concern of the precariat is truly abandoned by lawyers, law would remain a tool that allowed itself for capture without little resistance. Legal thought and Law schools as a situs for it, must investigate the role of institutions in contributing to the situation of precariat and the progressive agenda must work towards a more inclusive outcome centering their condition.
I remember how constitutional law and corporate law were all fashionable during my first degree in law. There is a greater task at hand, however, and it is time to make labour law “cool” again!
The lesson to be drawn from this largescale exercises of institutional restructuring of the present dispensation ought not to be one steeped in cynicism, but one of hope: that given the right political contingency created by appealing to and articulating an alternative and viable vision for greater inclusion, there are no constraints to actualization of such imagination, other than those of our own.
The author is a lawyer at the Supreme Court of India, currently on a break from practice to pursue his masters at Harvard Law.