Women and Labour laws Part -1

This post covers the development of labour laws in India across time, the effects of colonial control, and the gender-neutral policy that influenced the first set of labour rules. It also emphasises how the definition of women's labour and their role in this process in India

Contents

  1. Introduction
  2. Evolution of labour laws in India
  3. Labour Legislation post Independence
  4. Summary

Introduction

Labour laws in India are historically rooted in the experiences of colonial rule and the workers' struggles with it. The objective of the colonial rulers was primarily extractive, and industrialisation was implemented for the explicit purpose of exploiting natural resources and labour to promote economic expansion in the parent country. This resulted in serious worker exploitation and forced labour recruitment in plantations and businesses. As the nation fought for independence, employees were mobilised, but the initial laws were primarily gender-neutral. This blog illustrates this progression and demonstrates how women's labour and women employees were mostly neglected by the earliest labour laws.

Learning Outcomes

  • Comprehend the historical development of labour regulations in India and its modern continuation.
  • Examine the relationship between labour laws and employment; determine if and to what extent labour laws assure minimal conditions of decent work and livelihood for all workers, including those in informal employment.
  • Gain an understanding of the gendered assumptions guiding the evolution, enactment, implementation, and practise of India's protective labour legislation.

Evolution of labour laws in India

The term "labour law" refers to the body of laws that govern employment relations, dispute settlement, working conditions, salaries, and social security. Any examination of the law must take into account the political and economic climate of the time, as well as the imperatives that led to the passage of legislation at that time. Likewise, with labour law. And, we must not view the law and legislation as gender-neutral, but instead investigate the specific ways in which power is divided in our country's social construction along the axes of not only gender, but also caste, class, and community.

The history of labour law begins with the establishment of modern industry in the second half of the nineteenth century. The industries established catered to our colonial master Britain's international trade commitments rather than to internal demands and requirements; they were purely extractive in nature (the theft of our people's labour and our country's resources fueled the Industrial Revolution in Europe and Britain's emergence as the world's leading industrial power); and they were confined to small enclaves of India. The oldest developed industry were tea, coffee, and rubber plantations. Afterwards, coal mines and cotton and jute mills were established. At this time, labour laws were not intended to protect workers or to regulate their hours or wages, but rather as instruments of coercion. Unions were outlawed, and any form of collective action by workers, such as a strike, was criminalised; you would not only lose your job, but but go to jail!

Despite the fact that more than forty percent of plantation labourers were women, law was primarily concerned with guaranteeing a constant supply of labour for plantations. Since the estates were located in sparsely populated regions, sardars or recruitment contractors brought plantation labourers from thousands of miles distant. The primary provisions of these legislation authorised the arrest and imprisonment of labourers who evaded employment or attempted to flee, or who refused to work. On plantations, this harsh penal system, abysmally low salaries, and deplorable working and living circumstances led to numerous abuses and extraordinarily high mortality rates. Even when the rate of death and morbidity among tea garden workers reached alarming levels, no mother and child care programme was implemented.

The other focus of industrial growth pursued by the British Raj was mining, specifically coal mining due to the requirement for coal for the railways. (Railways were also constructed for the sole goal of moving resources and goods to the ports for sale from the interior, as well as delivering troops to isolated places to prevent a native uprising) In the mines, women and children comprised over 30 percent of the labour force. Prior to the 1920s, family labour was encouraged and underground work was tightly split along gender lines: men chopped the coal while women and children loaded it onto tubs for transportation. A number of legislation were enacted, but none of them contained measures for regulating the labour of women and children; there were no formal limits on the daily hours of work and no exclusion from underground labour. In 1929, legislation prohibiting the employment of women underground were implemented only after the introduction of coal-cutting technology, which led to a decrease in demand for women's labour. This clearly demonstrates that the purpose for the underground employment ban was not the protection of women workers, but rather the needs of the mining sector at the time.

When the demands of the war caused a severe labour shortage in the mines, the government lifted the ban unilaterally in 1943, without consulting Parliament or any trade unions, and huge numbers of women returned to the underground mine. Once the war ended and the soldiers returned from the battlefield, the prohibition on women working underground was reinstated in 1947, as conditions were favourable for male employment. This example clearly illustrates how women comprise what is known as the "industrial reserve army of labor"...they are withdrawn from the labour force when labour supplies are abundant and reintroduced when a crisis causes an increase in labour demand.

The second half of the nineteenth century also witnessed the establishment of cotton mills, primarily in Western India around Bombay and Kanpur, as well as those in the south. Women comprised between 5% and 20% of this workforce. The first factory law was passed in 1881, not so much to safeguard workers as to protect the profits of Lancashire and Manchester cotton mill owners! These magnates faced tough competition from their Indian counterparts, who had the benefit of cheap labour and terrible exploitation of male, female, and child labourers. While the millowners of Britain were at a disadvantage due to a developing trade union movement in England, the presence of labour laws, and other historical causes, the trade union movement expanded in Scotland. Therefore, these British millowners made a hue and cry over the severe exploitation of Indian employees and demanded legislation to end these "inhuman practises" in India. These voices were joined by those of true philanthropists, resulting in the passage of the first Factories Act in 1881. This Act forbade the employment of children under the age of 7 in industries, and children between the ages of 7 and 12 were not permitted to work more than 9 hours each day. There were no provisions regarding women's relief. In addition, this law only applied to companies employing 100 or more workers, not seasonal factories like distilleries and presses. The provisions of this act were executed more inconsistently than intended.

Many Indian benefactors were inspired by the plight of the mill employees, but the first trade union in India was not created until 1890. One of the Indian members of the previous Factory Commission, Narayan Meghaji Lokhande, who was an ardent member of Mahatma Phule's Satyashodhak Samaj, championed the cause of Bombay's mill workers and created the Bombay Millhands' Association. Lokhande put out a charter outlining the demands of the mill workers, which included a weekly day of rest, work hours beginning at sunrise and ending at dusk, and workers' compensation for industrial injuries. This petition was signed by tens of thousands of mill employees. The British government was compelled to appoint the second Factory Commissioner, and Okhande deposed and submitted the memorandum prior to this appointment. As a result, the Second Factories Act was passed in 1891, which specified, among other things, an 11-hour workday for women. Other provisions included a 9-hour workday for children under 14 years of age, one day of mandatory rest each week, and a daily 30-minute meal break. Notably, this ordinance did not restrict the working hours of male workers; that restriction came 20 years later, when the Factories Act of 1911 limited male workers to 12 hours per day.

The millowners in India were vehemently opposed to the provisions of these Acts, and the restriction on the working hours for women workers was violated with impunity, as it suited neither the employers nor the employees, as the employers proportionally reduced wages as the number of hours worked decreased! The Factories Act of 1911 prohibited women from working between 7 p.m. and 5 a.m., with the exception of seasonal cotton-ginning and pressing mills.

The Factories Act of 1922 further decreased the woman's work day to 10 hours, but this clause was ineffective because inspectors lacked the authority to monitor the number of hours women worked, therefore this new regulation was openly disregarded. The second Factories Act, enacted in 1934, introduced the nine-hour workday and, more critically, required employers with a significant number of female employees to provide creches.

In 1917, the Russian Revolution occurred and altered the global labour landscape, including India. The frequency of strikes increased significantly, and worker morale improved. Unions proliferated across the nation wherever there was industry. Although Lokhande's Bombay Millhands' Association was the earliest association of workers known to Indian labour, it was not a trade union in the modern sense, as it lacked a membership register, fee, executive committee, etc. The Madras Labour Union, the first legitimate trade union in India, was founded in 1918 in Madras by B. P. Wadia, a philanthropist and close colleague of Dr. Annie Besant (the famous social reformer and Home Rule protagonist). A few months later, Gadnhiji also founded Majoor Mahajan or the Ahmedabad Textile Labour Association, another organisation for millworkers in Ahmedabad.

In 1920, at a massive public assembly in Bombay, the All India Trade Union Congress (AITUC) was founded in response to the necessity for a central trade union co-ordinating organisation, as a result of the rapid growth of trade unions. Lala Lajpatrai was elected president of the organisation, while Lokmanya Tilak and Annie Besant served as vice presidents. Many years later, unionists of all political stripes – Congressmen, socialists, and communists – worked together in the AITUC. However, the trade union movement subsequently split along political lines, and most political parties formed their own trade union wings, namely INTUC (Congress), Bhartiya Mazdoor Sangh (Jan Sangh, then BJP), Hind Mazdoor Sabha and Hind Mazdoor Kisan Panchayat (socialists), and Centre of AITUC continues to support CPI.

In the 1920s, emerging unions exerted pressure on the government to defend the right of workers to organise by recognising trade unions and shielding union officials from civil and criminal punishment for legitimate union action. The government was adamantly opposed to this, but was forced to approve the Trade Unions Act of 1926. This Act only provided for the registration of unions with the government, but unionists were not afforded any legal protection. This Act required the registration of unions, submission of their constitution and audited financial statements to the government, and expressly barred the use of union funds for political reasons.

With the advent of World War II, the colonial authority sought to silence the working class by enacting Clause 81A of the Defence of India Rules, which prohibited strikes and mandated government arbitration of all labour issues. The government also enacted the Essential Services Maintenance Ordinance, which made it a crime for workers to leave or abstain from work (strike), punishable by fine and imprisonment. 1.14 Due to inflationary conditions induced by traders' stockpiling and black market activity, actual earnings declined during wartime. In contrast, capitalist profits increased as a result of the war's increased demand... They tripled and even doubled in size! This circumstance resulted in the need for Dearness Allowance, which was a notion formed by workers to compensate for the decline in real wages caused by the increase in the cost of living index. In March 1940, 175,000 textile workers in Bombay went on strike for a dearness allowance, the first of numerous strikes. This historic walkout was followed by protracted strikes for the same demand in all industries throughout India. The government and manufacturers were subsequently compelled to meet the demand, but there was no uniformity in the rate of D.A. granted; it depended entirely on the strength of the union versus the management in each institution.

After the war, AITUC agitated for these demands
(i) DA must be made a permanent feature
(ii) a Minimum Wage must be made compulsory for all workers
(iii) the working day should be only 8 hours long (iv) there should be health insurance and old age pension for all workers.

Labour Legislation post Independence

The notions of social justice and welfare state entrenched in the Constitution of India were the driving principles for the formulation of labour regulations following India's independence in 1947. The Fundamental Rights established specific principles that influence the formation and interpretation of the rights and benefits guaranteed to labour by law. Particular emphasis must be placed on the following:
  1. The right to Equality before the law and equal protection of the laws (Art. 14) 
  2. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Art. 15) which would mean that women cannot be discriminated against by the state for the sheer fact of being female. 
  3. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State. (Art.16) 
  4. The right to Freedom (Art. 19) and in particular
    • the right to freedom of speech and expression (for e.g. demonstrations by workers and even strikes have been held to fall within this right) 
    • the right to assemble peaceably and without arms (meetings of workers could be held) 
    • the right to form associations and unions (which legitimized unionization and that workers could join a union of their own choice) 
    • the right to practice any profession, or carry on any occupation, trade or business.
  5. Prohibition of traffic in human beings and forced labour (Art. 23) 
  6. Prohibition of employment of children in factories, mines or any other hazardous employment (Art.24)
The Constitution also specifies the obligations the state owes to labour for their social revitalization and economic advancement. In the chapter on the Directive Principles of State Policy (these are not rights that can be enforced in higher courts like Fundamental Rights can under Article 32, but they are guiding principles to be followed by the state and the courts...), it is stated that these are not rights that can be enforced in higher courts like Fundamental Rights can under Article 32.
  1. The State must to secure a social order for the promotion of welfare of the people and in particular to minimize the inequalities in income.(Art.38) 
  2. Art. 39 is so important that it must be quoted in full: The State shall, in particular, direct its policy towards securing- 
    • that the citizens, men and women equally, have the right to an adequate means to livelihood; 
    • that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; 
    • that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; 
    • that there is equal pay for equal work for both men and women; 
    • that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; 
    • that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
  3. The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. 
  4. The State shall make provision for securing just and humane conditions of work and for maternity relief (Art. 42) 
  5. To secure, by suitable legislation or economic organization or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities (Art. 43) 
  6. The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, (art. 43A)
These ideas of social fairness were partially reflected in the employment legislation enacted around the time of independence:
  1. The Industrial Disputes Act 1947 
  2. The Minimum Wages Act, 1948 
  3. The Employees’ State Insurance Act, 1948 
  4. The Provident Funds Act, 1952 
  5. The Bonus Act, 1965 
  6. The Payment of Gratuity Act 1972

Summary

This blog explores the historical development of labour legislation in India. It underlines how the colonial rule and its emphasis on maximum exploitation of natural resources and human labour resulted in an uprising, the mobilisation of workers, and the foundation of Trade Unions in India. India attained independence as a result of the creation of numerous unions and rising clamour for freedom, and the unions continued to collaborate with the newly created state on labour regulations. However, despite the enactment of various protective and promoting laws, women's labour and women workers' rights remained marginalised, and the majority of legislation enacted were gender-neutral.

Reference

  1. Nair, J. 2000[2nd Impression]. Labour Legislation and the Woman Worker, in Nair, J., Women and Law in Colonial India, Kali for Women, New Delhi, Chapter 4, pp 95-121 
  2. Sankaran, Kamala. 2007. Labour laws in South Asia: The need for an inclusive approach, Kamala Sankaran, Discussion Paper, International Institute for Labour Studies, Geneva 
  3. Sen, Samita. 2008. Gender and Class: Women in Indian Industry, 1890-1990, Modern Asian Studies, Vol. 42, No. 1, Indian Labour, pp. 75-116 
  4. Dayal, Sahab. 1976. The Development of Modern Wage Concepts and Labour Legislation in India—An Analysis, Indian Journal of Industrial Relations, Vol. 12, No. 2, pp. 147-175 
  5. National Commission for Enterprises in the Unorganized Sector. 2009. The Challenge of Employment in India: An Informal Economy Perspective, Vol. 1, Main Report, Chapter 7, pp168-187, New Delhi.

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