Privileging Growth, Undermining Rights

K.B. Saxena

India has a long history of resisting the inequities of State policies and oppression by the socially and economically dominant groups. The colonial state witnessed many revolts from subaltern groups against its policies of deprivation of access to and control of productive resources, appropriation of forests, imposition of an alien system of revenue and law and justice administration. These movements have had varying degree of influence on State policies to address injustices the most important was to protect tribal land from getting alienated to non-tribals. In the post-colonial state, these movements acquired greater salience because of the opportunity afforded by political democracy resulting from the constitutionally enshrined Fundamental Rights and Directive Principles of State policy. As a result, in independent India, there has been a distinct imprint of the influence of these political mobilizations on the formulation of public policies and state action. The link between the land reforms programme carried out by the state in the 1950s and later in the 1970s cannot be missed with the Tebhaga and Telangana movements in West Bengal and the erstwhile Andhra Pradesh respectively towards the close of colonial rule and with the Naxalite movement in the late 1960s and 1970s (Ray et al, 2005) besides the promises made during the national movement. The reorganization of States on a linguistic basis was the offshoot of massive agitations in 1950s and 1960s. The right based laws around forest, education, access to information, food security, employment in the first tenure of UPA in the current century were also enacted after sustained mobilization of people by political groups and civil society in the background of growing inequalities, increasing impoverishment of the poorer and marginalized sections and deprivation of access to essential services resulting formed neo-liberal globalization policies. Expansion of Human Rights advocacy at the international level reflected in various UN declarations, covenants and conventions the latest being the sustainable Development Goals as central to human development also contributed to this outcome since India is signatory to a number of them.

The poor and the marginalized groups prefer statutory right based entitlements rather than programmes based on policy declarations for the simple reason that to have a right based law is to have a claim on other people, a demand on the state and the community. It imposes duties on specified persons to fulfill it. It also locates accountability for failures to enforce the right. Besides, right based regime can aid in mobilization of people and can be enforced by the court, if approached. (Das, 2015). Therefore, people engaged in struggle on various issues after they have ensured that statutory entitlements concerning their demands have been realized feel secure against possible threat to rights abridgment, or their dilution or even deletion or simply their non-compliance as a result of political and economic exigencies, regime changes or pressure from adversary groups who had been opposing these measures and feel confident that soon the benefits would start getting delivered by state agencies. But the experience of governance in India belies this hope. The laws are stuck at the stage of implementation and the state in India has taken no active let alone proactive steps to enforce these rights. This has almost emerged as a typical characteristic of governance in India. Critics have attributed this indifference towards implementation of laws to lack of political will. But this elusive political will is reserved only for the laws and measures which have the potential to benefit the poor not those which benefit the privileged / dominant sections of society. This notwithstanding, prior to 1990, generally speaking, the state did not change these laws, curtail/ dilute entitlements, or simply ignore and violate them fearing that such an attempt would deprive it of the support of the poor and marginalized groups. Its indifference was limited to taking no active interest in implementation of laws, blaming bureaucracy for their non-implementation and failure to take speedy corrective action on the basis of mounting evidence about the loopholes in the laws, the incapacity and biases of the implementing bureaucracy and criminal justice and administrative system leading to their non-delivery. However, there was a paradigm shift in state attitude in this regard post 1990 with the shift to a market economy, and later, to a globalized economic order. The state pursued a capital intensive growth centric path directed and overseen by international financial institutions under the aegis of the Structural Adjustment Programme. This entailed taking measures to remove obstacles to the free operation of market forces, drastic reduction in state role in provisioning of social and civic services and reducing subsidies and fiscal deficit to attract international financial investment so as to drive growth. Many of these right based entitlements were perceived as detrimental to the free operation of market forces.

Land Reforms Laws

In agrarian societies issues around land are the primary targets of struggle and mobilization of the poor and marginalized groups. India was also predominantly an agrarian economy at the time of independence. Issues relating to land acquired particular salience in India because of the devastating impact of changes introduced by the colonial government in the agrarian structure. These changes had led to huge concentration of land in a small group of parasitic zamindars / taluqdars, a long chain of intermediaries between the owner of the land and the cultivator, extraction of excessive rent and forced labour from the cultivator, lack of tenurial protection to the cultivator of land, usurious money lending and forced commercial crop cultivation imposed on the farmers by the Planters. These changes wrought havoc on the actual cultivator at the bottom of hierarchy of intermediaries leading to his impoverishment, perpetual indebtedness and multi-faceted exploitation. The reform of the structure, therefore, engaged the national movement and prominent leaders in a big way. Post-Independence, among the first and the most important policy changes made by the government was to introduce land reforms. These reforms encompassed five components: abolition of Zamindari system (intermediaries), protection to tenants, imposition of ceiling on agricultural holdings with a view to distributing land declared surplus over the ceiling to landless persons, updating of land records and consolidation of land holdings to bring together fragmented plots of a peasant so as to constitute a viable holding for cultivation. Admittedly, these reforms were poorly implemented as the landed class which dominated the state structure at the political, bureaucratic and judicial levels defeated the objective. The laws were formulated with considerable delay, assigned a large area to the land owners and left many loopholes to help them escape from their ambit. Even the weak laws faced stiff resistance at the ground level to prevent benefits percolating to the tenants and landless persons. By the 1980s government lost interest in pursuing the agenda of land reforms altogether and opted for softer options to assist small and marginal farmers in improving their income. As a result land distribution remains highly skewed (Chaturvedi, 2016). Despite this, no Congress / UPA (United Progressive Alliance) government ever contemplated reversing these lands reforms because such a move would have heavy political cost in terms of loss of political legitimacy among the poor which constituted an important segment in its basket of political support. But post 1990, with the shift to a market economy, pressure began to be exerted on the government to remove these restrictions so that land becomes fully marketable and market determines who would make the most efficient use of land. As a result, exemptions have been made in the agricultural ceiling laws in almost all states for the industry and other such investors etc. from the operation of ceiling limit which enables them to acquire land much beyond the ceiling limit. This has led to a huge concentration of land in big industrialists. Besides, urban ceiling Act was abolished altogether and developers can now acquire / purchase land without any restriction supposedly for housing, building infrastructure etc. As for tenancy reforms, a committee headed by Dr. T. Haque and constituted by the Niti Ayog has recommended to the states that all restrictions on tenancy must be removed so that land owner is free to lease out land to any one and on terms he considers suitable which would assure the landowners against fears of losing land. Lease can be terminated by giving advance notice of one crop season. There is no obligation to enter into a formal agreement. This would help land owners get rental income from their land. (ET, 2016) The changes being made have reversed the role of state from a protector of tenants and share croppers to one that now aims at protecting the non-cultivating land owner. The poor tenant would now be completely at the mercy of the land owner without any legal protection against eviction and demand of heavy rent and ‘begar’ (labour carried out without remuneration in return).

Government’s commitment to break the concentration of land by abolishing of Zamindari has also been reversed. The most glaring example of this reversal is the enactment of special economic Zones Act 2005 under which government acquires thousands of hectares land from the poor land owners and transfers them to developers. For example, the Adani group applied for and received 44 98 + 2658+2648 hectares of land for 3 such zones and also acquired permission to merge all three. During the UPA tenure 578 SEZs were approved of which 315 were notified. Earlier restriction of 5000 ha of land as the maximum ceiling for a SEZ has also been removed (IR, 2009). This permissive policy environment is creating a new zamindari of industrialists and leading to concentration of land which former zamindars could not dream of. They have also been pampered with other concessions – tax breaks, exemption from operation of labour and municipal laws. A SEZ is government within a government.

The reversal of land reforms even extends to the protection of tribal land which the colonial government had enacted. State after state are relaxing provisions of tribal land laws so that tribal land is acquired by State or purchased by non-tribal persons without any legal conflict. This has created a virtual land grab in tribal dominated states. (Gupta, 2017) Chhattisgarh, Maharashtra, Jharkhand etc. are in the forefront of such relaxation. Orissa has even induced leasing of tribal land to commercial interests in agriculture which turns commitment to protect of tribal land into a mockery. The Jharkhand Government had recently changed century old tribal laws passed by the colonial government. (Jitendra, 2016). The amendments in the CNT (Chhotanagpur Tenancy) Act, permit tribal land to be taken by the government for building infrastructure – rail, road, communications. irrigation, mining and industry with the permission of the DC (Deputy Commissioner). The amendment in the SPT Act permits change of land use. This would lead to grabbing tribal land for industry and mining and even benami transactions (The Pioneer, 2016). This violates PESA (Panchayat Extension to Scheduled Areas Act 1996) also. As a result of protest all over the State from tribal groups, Governor did not give assent to the bill which had already been passed by BJP government. Similarly Chhattisgarh brought out an amendment to the tribal lands laws which allowed tribal land to be sold based on individual consent. However, under the amendment this has been dropped for the time being (Ghose, 2018). This change was against the State government’s own stated policy that no tribal land can be bought and sold. This is only a temporary halt. Capital is grabbing land as it perceives it to be the safest asset and greatest insurance against risk of investment and financial bubble. Tribal land is also being deprived of protection by incorporating tribals areas near the vicinity of urban centres into the Municipal Jurisdiction where the protective provisions would not apply. The worst is that the state itself has been violating tribal land protection laws by acquiring tribal land for industry, mining, infrastructure, housing etc. under the Land Acquisition Act, 1894 as a result of which tribals have been displaced from habitat, livelihood and land on a massive scale. They constitute 45% of the total displaced persons though being merely 8% of population and have become landless on an unprecedented scale in independent India despite constitutional protection they enjoy against alienation of their land.

The neo-liberal lobby’s push for removal of restrictions on land transaction and use also includes change in rules / regulations relating to land use from agricultural to non-agricultural. Earlier, a proposal to this effect required close scrutiny by revenue officials and was sparingly accorded in order to protect agricultural land and food security of people. Now, such permission for change in land use is given with ease particularly in the cases of the acquisition of large areas of rich agricultural land for development projects and its transfer to the investors. Another dimension of this restriction was prohibition of non-agriculturalists from purchasing agricultural land. This restriction is no more observed rigorously and many industrialists are acquiring agricultural land for speculative purchases. As a result, the price of land has skyrocketed in rural as well as urban areas and is out of reach of the common man.

The most recent and shameful instance of change of land laws to appease the industry and business is the reversal of the Right to Fair Compensation and Transparency in land Acquisition Rehabilitation and Resettlement Act, 2013. This Act was the culmination of long struggle of people across the country to have a humane, democratic, just law on land acquisition in place of the colonial law of 1894. After several attempts at designing such a law and deliberations by parliamentary committee twice on the proposed bill, extensive consultation with State governments and other ‘Stakeholders’, the 2013 act was enacted unanimously by the Parliament during the closing tenure of UPA II. It contained some beneficial provisions such as consultation with people in respect of certain acquisitions for and by private companies; mandatory social impact assessment, comprehensive rehabilitation etc. However, the NDA (National Democratic Alliance) government immediately on assumption of office, exempted its most crucial provisions from operations in respect a large number of industrial, development and infrastructure projects through an ordinance. This was opposed by farmers across the country. The ordinance was sent to Parliamentary Standing Committee of the Ministry for scrutiny which has not submitted its report yet. Meanwhile, the ordinance was allowed to lapse and not renewed. But the government has suggested to the states that they could enact their own laws on land acquisition on the lines of the ordinance since they have concurrent power. As a result, several states have enacted such laws. BJP (Bhartiya Janata Party) led States were in the forefront of the change. In this manner, the gains of prolonged struggle have been set at naught at the behest of industry which opposed the 2013 law as it would lead to delay in acquisition, increase the transaction cost, and saddle industry with the task of rehabilitation of displaced persons. The states were ready to oblige. The affected poor farmers do not matter to them as they have no clout in the government. (Saxena, 2015).

There is yet another dimension to the reversal of land reforms. The states had and continue to have a large area of land at their disposal under their ownership and control. This includes village commons used for grazing and collecting fuel wood and fodder, ceiling surplus land not distributed, land vesting in the government as a result of Zamindari abolition etc. A part of this land was used for creating essential amenities and matching other public needs of the local people in the village while some land was also distributed to landless poor, particularly Dalits and Adivasis both for housing and cultivation. But this land is not a vacant land. People use this land for various purposes on a customary basis which government has not been objecting to. Some state laws permit certain groups to reclaim this land for agricultural purposes and apply for regularization and assignment. After the onset of economic reforms, the state is transferring this land to the corporates for their projects. Government assumes this land is free from any private claims or interest and therefore it has the sole prerogative to transfer it to any entity. But this has created huge conflict with people. A substantial part of this land is under cultivation by the local people many of whom have some documentary evidence of the legitimacy of their claim. They have also applied for regularization these claims under the available laws. Government, disregarding such claims, transfers the land depriving the poor people of their source of livelihood and even compensation because land records do not show their occupation in the absence of government recognition of it. Their use and occupation is viewed as an encroachment and does not entitle them to compensation. Worse, instead of the rural poor benefitting, or the land being used for meeting village needs, present or future, corporates are being given the benefit of it. Corporates are keen to get hold of such land so that they can pressure villagers who oppose acquisition and sale of their land for their project to fail in line and agree to sell the land to them.

Forest Rights Act

One of the most recent and the worst examples of undermining of rights of poor people at the behest of corporates is that of Scheduled Tribes and Other Forest Dwellers (Recognition of Right) Act, 2006 which was enacted after a protracted struggle over a long period of time starting from the colonial period. The Act conceded rights of Access to and use of forest resources, their management, and recognition of their existing occupation of forest land. It was a landmark law undoing historical injustice to be tribals done by the colonial government. But, the enforcement of the Act has been systematically defeated by the forest bureaucracy through many devious ways. Besides filing cases in the High Courts against the enactment of the Act, there has been arbitrary rejection of a very large number of claims, insistence on production of documents for considering claims, strong reluctance to recognize community rights, recognition of a fraction of the claim where the claim made has been conceded in principle, not amending Wild Life protection Act and Indian Forest Act which are in conflict with FRA (Forest Right Act) thereby using the provision of those laws to deprive tribals of the benefit of FRA, deliberately notifying 31 additional Tiger Reserves at a breakneck speed without adhering to the legally mandated provisions and forcibly relocating persons residing in these areas outside the forest with the sole purpose of depriving the people of their rights under FRA. Besides, more than 55 lakh hectares of forest land have been diverted for non-forest purposes since 1947 of which 31 lakh hectares were diverted after 2008 when FRA had become operational. The clearance granted for this diversion since 2009 has not complied with the FRA which requires prior consent of the gram sabha of the village. In a very few cases like the famous Niyamgiri Vedanta, this violation remained unchallenged due to lack of resources, awareness and capacity of the adversely affected tribals. In an unprecedented move, Ministry of Forest and Environment not authorized under the FRA to issue guidelines and circulars diluting the Act or exempting certain projects from its application has done so and the Prime Minister’s office has backed them up. (Bijoy, 2017) For example, PMO (Prime Minister’s office) has directed Ministry of EF (Environment and Forest) and MOTA (Ministry of Tribal Affairs) to revise the circular to the effect that no Gram-sabha consultation should be necessary for infrastructure projects where any other mandatory consultation has been carried out such as for environmental clearance. In such cases, the concerned State governments can issue such a clearance MOEF (Ministry of Environment and Forest) issued such a circular in February 2013 without any legal power and dilute its own order issued in 2009, MOTA (Ministry of Tribal Affairs) sent a circular to all states that the illegal order of MOEF should not be honoured. MOEF has been persistently advocating doing away with Gram Sabha consent where public hearing is required. It issued again an illegal order granting District Collectors unilateral power to sanction diversion of Forest land in areas notified as forest less than 75 years prior to 13th December, 2005. MOTA again objected to it. PMO again supported MOEF against MOTA objections. Again, based on an inter-ministerial meeting, on January 12, 2015, MOEF issued guidelines contrary to the law exempting five categories of projects from obtaining Gram Sabha’s consent where statutory consultation has been carried out for environmental clearance MOTA again objected to this. In January, 2017, Ministry of Mines issued a circular wrongly intimating that MOTA was not insisting on FRA compliance for grant of lease and that conditions for FRA compliance should be incorporated in the mining lease. MOTA again objected to it. MOEF also issued guidelines in August, 11, 2013 laying down procedure for leasing out degraded forest to private companies where they would jointly carry out afforestation and extract timber. These guidelines would severely limit tribal communities’ access to non-timber forest produce to only 10-15% of the area. Ministry of EF are also ignoring FRA in afforestation programmes carried out under Compensatory Management Fund and ‘National Mission for Greening India’. Similarly, MOEF continues to operate joint forest management programme (in Chhattisgarh, AP (Andhra Pradesh), Odisha, and Jharkhand) in violation of FRA. Not only the central government, but the state governments of Maharashtra, Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha and AP have devised various methods to subvert FRA. Maharashtra and MP (Madhya Pradesh) have notified rules giving significant powers to state authorities to manage forest and control forest produce in areas where FRA applies and in scheduled area. In Maharashtra, this is legitimized by obtaining gram sabha resolution while in MP, it applies to the whole state. These rules are violation of FRA. Again, when the matter was raised within the government of India, the PMO again intervened to pressurize MOTA to agree that such rules made by state governments should apply where claims of tribals are not pending or gram sabha intimates that no future claims are likely to arise. Rules were amended exempting its application to Scheduled areas claiming that rights under FRA would not be abridged by rules. MOTA has succumbed to the pressure of PMO and MOEF to let the latter formulate procedure for conservation management and sustainable use of community forest resource which is actually the function of gram sabha under FRA. (Bijoy, 2017) The other method used to subvert FRA by state governments is to give a short period to settle all eligible claims after which no claims would be entertained. The above short narrative is evidence enough that government itself is subverting FRA by subterfuge and deceit under pressure from forest bureaucracy which dominates the Ministry of EF and at the behest of the corporate agencies which want quick forest clearance without adherence to any law or procedure or accepting any obligation in line with it.

Labour Laws

Across the globe, India being no exception, labour laws have been enacted as a result of sustained mobilization by trade unions to protect workers from exploitation of the employers by enacting laws regulating conditions of work, securing them against dismissal, retrenchment and other forms of punishment, and giving workers right to collective bargaining. India has a large basket of labour laws covering both the unorganized sector and the organized sector. Some of these laws were enacted in the colonial period when India was exposed to capitalist industrialization. The implementation of these labour laws has been very tardy, though it has been relatively better in the organized sector. With the changeover to market economy post 1990, the pressure of international financial institutions and global and national capital has led to a systematic and increasing assault on the labour laws and clamour for ‘Labour Reforms’ – an euphemism to give employers the power to hire and fire and doing away with Inspector Raj. Among the initial measures in this direction was the pronounced tilt of the government machinery in favour of the employers against labour and unofficial signals to labour enforcement machinery not to inspect establishments. But the tirade in favour of drastic labour laws reforms has been persistent. The government, pursuant to ‘Make in India’ and ‘Ease of Doing Businesses ‘Campaign has attempted several changes in the labour laws most of which benefit capital rather than labour. One such reform is the unveiling of Shram Suvidha Partal which would allow employers to submit a self-certified single compliance report of 16 central labour laws. This implies that enforcement machinery would not check the establishment for compliance but trust the firms about the truthfulness of the information. Not only this, in order to put an end to the existing mode of enforcement altogether, and dismantle ‘inspector Raj’, from now on labour inspectors would not be able to decide on their own the establishments to be inspected. Instead, establishments would be randomly selected through a draw of lot centrally and the labour inspectors have to inspect them and upload their reports within 72 hours. This Central selection of enterprises for inspections would compromise the effectiveness of the inspections and it is feared that even if there are complaints of violation of safety norms of the workers, inspectors may not act. This change militates against ILO’s (International Labour Organisation) labour inspection convention 81 (1947) to which India is a signatory. Besides this move would reduce the annual labour inspections (currently around 3 lakhs) drastically and would jeopardise workers safety. (Baig, 2016) Further, Government has made far reaching amendments to the Factories Act, 1948 which allows women workers to work in the night shift (7:00 pm to 6:00 am). This would help employers substitute male workers by female workers and reduce their wage bill besides exercising more effective control over them as they do not unionize. It has also increased the limit of overtime work from 75 hours to 115 hours per quarter and up to 125 hours, per quarter for public utilities. This will lengthen working hours and prevent further job creation: The Apprenticeship Act has been amended to include contractual workers in the definition of workers to permit companies to increase the number of apprentices they can hire. Non engineering background candidates have also been made eligible for being hired as apprentices. Flexibility has been given to companies with respect to areas of deployment of apprentices and to unilaterally decide on daily /weekly working hours for them. They have been given full freedom to formulate their policies regarding recruitment of apprentices. The penalty of imprisonment for violation of the law has been removed and only monetary penalty has been retained. These changes were made disregarding the views of the Parliamentary Standing Committee. Also, the Labour Laws (Exemptions from Furnishing Returns and Maintenance of Registers by certain Establishments) Act 1988 has been amended to exempt establishments employing 40 workers in place of existing 19 from maintaining registers and filing returns individually for 16 labour laws in place of 9 earlier. This will further increase violation of labour laws. All these changes are detrimental to the interests of the working class.

Government also has proposed four legislations with a view to simplifying amalgamating and rationalizing 44 labour laws. These four consist of codes in the areas of wages, industrial relations, social security and occupational safety, health and working conditions. So far, three codes – on wages, industrial relations and social security have been placed in public domain.

The proposed Labour Code on Industrial Relations integrates three labour laws – Trade Unions Act, Industrial Disputes Act and Industrial Employment (Standing Orders) Act into a single code. It allows companies hiring up to 300 instead of existing 100 workers to lay them off without seeking official sanction. The notice period for this action has been raised to three months from the existing one month and retrenched workers will be paid an average salary of 4.5 days in place of existing 15. A worker’s right to object to being laid off has been curtailed to three years against the existing unspecified period. The new law would make it tougher for workers to form unions or to go on strike. Only workers working in the establishment would be allowed to form unions and no outsider can be an office bearer of the union in the organized sector while in the unorganized sector, two outsiders can become members of the union.

Workers have been prohibited from going on strike during conciliatory proceedings. It bars strikes in all establishments without a prior six weeks’ notice. Mass leave would be considered a strike. If more than half the workers are on casual leave it will be treated a strike. Amendments to the Industrial Disputes Act propose two changes. First it gives greater freedom to the employers to retrench or lay off permanent workers and second to expand scope of employing contractual or casual labour in larger number of jobs. (Baig, 2016)

The proposed amendments to the Factories Act 1948 as contained in the Small Factories Bill has the objective of keeping units employing less than 40 workers out of purview of 14 labour laws including those on Provident Fund, Health Insurance and Industrial disputes and are strongly opposed by trade unions. The increase of working hours from 10.5 hours to 12 hours would cause harassment of workers and increase of overtime from the existing 50 hours per quarter to 100 hours and extendable to 12.5 hours would aggravate unemployment problem besides affecting health of the workers.

The proposed enhancement of threshold level of employment for factories using power from existing 10 to 20 workers and for factories not using power from 20 to 40 workers would leave 70% of the factories in the country outside the protective legislation. (Baig, 2016) This would expose the workers to all types of exploitation without any relief. The proposed code on wages which replaces four existing laws – Minimum wages Act (1948), the Payment of Wages Act (1936), the payment of Bonus Act 1965 and Equal Remuneration Act (1976). It gives the power to fix minimum wages only to the state governments and omits central government’s role in it. This would have the adverse implication of central government employees in different states getting different minimum wages. This would violate fundamental right to equality. It would also lead to fixation of wages to the disadvantage of workers. States would try to compete in fixing lower wages to attract investment. The code also disregards persistent demand for a National Floor Level Minimum Wage. The proposed code also does not provide the basis for fixation of minimum wage taking into account need based criteria. Worse, the code would weaken the movement towards wage equality between men and women under the same employer and in respect of the same or similar nature of work. The entire Equal Remuneration Act has been replaced by a single provision prohibiting discrimination in wage fixation on ground of sex which is insufficient to protect women’s interests. Besides, the law that is replaced by this provision in the proposed code also protects women against discrimination in recruitment on ground of gender. It also contains a provision for a committee with 50% of members as women to advise the government on enhancing work opportunities for women as also a provision for an enforcement officer for grievance redressal. This benefit would also be lost. Worse, the provision in the code proposes replacement of labour inspectors by “facilitators” who will not inspect establishments but merely supply information and advice to the employers on effective compliance of provisions of law. ‘Facilitators’ will only provide guidance to establishment. The provision of punishment for failure to facilitate inspection with fine in the existing law would be replaced by issue of a written direction to comply with the law failing which only prosecution could be taken up. The enforcement has been stigmatized. The entire exercise is aimed at robbing labour laws of all effect is that deterrence and weaken enforcement mechanism which would further diminish respect for law and therefore its compliance. In the payment of Bonus Act, Trade Unions’ right to legally access audited accounts and balance sheet has been removed which would prevent workers from questioning the financial claims of the employer. More adverse provision relates to exemption of newly set up establishments from payment of bonus. This would be widely misused by establishments to get away from the obligation to pay bonus by creating new establishments from the existing ones. The draft lowers labour standards, ignores violation of laws and worsens the condition of workers. Trade unions have condemned it for taking away workers’ democratic right to information and collective bargaining (Scroll-in 2018).

The proposal labour code on Social security, while committing to provide comprehensive social security to the entire work force amalgamates 15 central labour laws and applies to workers in the formal as well as informal sectors and envisages various schemes to be formulated by Central government and funds to be established in each state government / UT. Existing schemes would be scrapped. The adverse aspects for workers in the proposal code include: (a) risk that all benefits provided by existing state wide welfare scheme may not be incorporated in the new ones; (b) the new bodies to replace the existing ones may be pliant and not protect workers’ interests; (c) induction of private agencies in the administration of schemes would result in trust and accountability deficit; (d) registration of establishments only that employ workers in numbers notified by Central government is exclusionary; (e) state being empowered to exempt any establishment or class of establishments by central government from application of the code would restrict the coverage of workers; (f) exclusion of apprentices is discriminatory and deprives them of access to social security; (g) requirement of uniform payment of contribution of 12.5% of monthly wage and 20% in the case of self-employed workers for security benefits even for workers in informal sector ignores ground reality of work uncertainty low wage and wage irregularity. It is also not clear whether government would contribute its share; (h) giving power to the central government to exempt any employers from the levy of cess even retrospectively could be misused to benefit some employers; (i) risk of amounts collected as provident fund and gratuity being exposed to stock market; (g) computer-generated risk weighted inspection system based on parameters decided from time to time would lead to huge regulatory deficit. (Gopalkrishnan, 2017). Experts and trade unions have expressed concern that this code making exercise is aimed at curtailing rights and benefits in the existing arrangement. The proposed labour codes under the grab of simplifying labour laws fails to recognize the vast diversity in the socio-cultural features of workers in India who cannot be treated an undifferentiated category. Government has failed to comprehensively consult workers and their unions in drafting them. Its most regressive dimension is to delegitimize role of trade unions in enforcement. (Pinto, 2017) The above narrative would indicate that there is an all-out war on labour rights and benefits to placate the industry and investors.

AP government has also made similar regressive amendments unilaterally. (Patnaik, 2015) But the most insensitive of all changes in the Labour Laws are the amendments to the Child Labour (Prohibition and Regulation) Act, 1986 which strikes at the root of commitment to abolish all forms of child labour (The Hindu, 2016). The amended law allows children up to age 14 to be employed in family enterprises and creates a new category of child labour (the 14-18 age group) who can be employed in non-hazardous occupations. It also drastically reduces the list of hazardous occupations to only three and even ignores such hazardous occupation as waste, rag picking and scavenging and audio visual entertainment and advertisement industry. These changes have been made against the recommendations of the Parliamentary Standing Committee and violate the Right of Children to Free and Compulsory Education Act, 2009. Even if they are allowed to work after school hours, it would affect their health, concentration and interest in studies. Legalization of child labour in family based enterprises will be misused by industries by outsourcing their work to family enterprises besides reinforcing caste based occupation (George and Panda, 2015). It would dilute the ban on child labour up to 14 years of age. These amendments should be seen against other amendments in the labour laws to exempt factories employing less than 40 employees from the purview of monitoring, inspection and regulation under a number of labour laws. Such factories would now be deemed as family’ enterprises.

Mines and Minerals (Development and Regulation) Act

Mines and Mineral (Development and Regulation Amendment) Act 2015 was enacted in March 2015. The provisions detrimental to the interest of local communities affected by mining include blanket extension of mining leases instead of prior appraisal through rigorous mechanisms which CAG (Comptroller and Auditor General of India) had recommended in the context of illegal mining in Odisha, Karnataka and Goa, granting prospecting licenses cum mining leases through competitive bidding, empowering the central government to increase area limits in respect of prospecting licenses or mining leases without specifying any ceiling, reducing contribution of lease holder to District Mineral Foundation towards development of the affected communities from 100% royalty to 33% in case of new leases as the upper limit and doing away with 26% of project contribution to the District Mineral Foundation by Coal Companies, extension of the duration of Mining lease to 50 years from existing 20 years, non-inclusion of consultation with Gram Sabha before granting prospecting license or mining lease and in eligibility of tribal cooperatives for grant of lease for minor minerals. In doing so, some of the progressive features of the 2011 draft bill which were inserted after consultation with representatives of the affected communities have been ignored obviously at the behest of the corporates to attract their investment for economic growth, decrease their transaction cost and increase their profit.

Panchayati Raj Acts

But no law so glaringly strike at the root of the Constitution itself than the amendments carried out to their Panchayati Raj Acts by the Government of Rajasthan and Haryana to bar citizens without prescribed minimum school education from contesting elections. Haryana amendments disqualify prospective candidates from standing for the post of Panch or Sarpanch if they are men from general category who have not passed class 10 and those belonging to Scheduled Caste and women who have not completed education up to class 8 and women from Scheduled Castes who have not cleared class 5. It goes a step further. The Act also prohibits candidates from standing for election for public office for failure to pay arrears of primary agricultural cooperation society or agricultural cooperation bank, electricity bill and not having a functional toilet etc. In the case of Rajasthan, Leprosy Patients have also been barred. This repudiates the political foundation of our democracy enshrined in the Constitution about universal adult suffrage. It deprives affected persons of the two basic rights i.e. to contest election for public office and the right to choose a candidate of their choice. This decision would render 43% of the rural population, 68% of the Scheduled Caste women and 41% of the Scheduled Castes men in Haryana ineligible for the elections (Rajagopal, 2016). The percentage of exclusion would be higher in Rajasthan. As a result, 13 Panchayats in Rajasthan and 22 Panchayats in Haryana could not elect a Sarpanch (Gupta, 2016). The criteria besides being discriminatory is also arbitrary. No action of the government has marginalized further the already marginalized groups in SCs (Scheduled Caste) STs (Scheduled Tribes) than these amendments. It frustrates the constitutional scheme. Regrettably, the Supreme Court which ought to have struck down those amendments as ultra-virus has validated them which shows how the entire system operates to disempower these groups and also their voicelessness and lack of power in the polity. This is plainly a negation of democracy. It is also violation of International Covenant on civil and political rights. Ambedkar had warned that if economic and social democracy is not implemented, even the political democracy would be at risk. This is precisely what has happened. These changes are a denial of citizenship. No citizen chooses to be illiterate or not have a toilet. In case of most citizens, particularly women and SCs/STs, if the conditionalities have not been met, it is on account of factors beyond their control for which the government rather than affected persons are responsible. (Kumar, 2015) The bulk of those who are disenfranchised belong to the weaker sections not the middle income or well-off households who are willful defaulters of loans and bills. The amendments shirks the responsibility for failure of State and punishes the citizens. The highest court displayed lack of sensitivity and consideration for the poor people and SCs/STs among them in particular in validating these laws and demonstrated a lack of understanding of their conditions. The danger lurking is that other states would also create similar barriers and virtually rewrite the constitution and restrict democratic rights to the privileged sections. Unfortunately, Parliament has not come up with strong opposition to it and has not sought to pressure the government to undo it through a central law.

Right to Education

The most glaring violation of the Spirit of the Act is the emphasis on Model Schools and extending residential schools and special category schools like Eklavya Schools to class 12. This repudiates the provision of neighbourhood Schools and equality of education for all, creates division between schools, hierarchy in quality of education imparted, and unequal opportunities for children to receive education and would increase and widen inequalities. This elitist approach to policy making resists any attempt to equalize opportunities. The worst and most fundamental violation of RTE is the implicit delegitimisation of RTE by the NDA government. Instead of implementing RTE which enshrines the educational policy of the government approved by the parliament, the government has embarked on drafting a New Educational Policy different from the policy architecture contained in the Act. The preparation of a NEP (New Educational Policy) has reached a final stage.

National Food Security Act

The Global Hunger Index places India on the top of world Hunger list with 194 million hungry people in 2016. It ranks India 97 out of 118 countries. The hunger situation in India is even worse than Sri Lanka, Bangladesh and Nepal in South Asia. A movement led by Civil Society activist, Jean Dreze, mounted a Right to Food Campaign which was also aided by Supreme Court directives in the context of a PIL (Public Interest Litigation) filed by PUCL (People’s Union for Civil Liberties) in which it interpreted access to food as part of Right to Life granted under Article 21 of the Constitution. As a result, the National Food Security Act was enacted in 2013. It contains separate entitlements for priority group (75% of rural and 50% of urban population), children, pregnant women and those poor who have no family support or resource. The persons eligible for receiving food grains are required to be determined on the basis of caste and economic census data which has been completed. The Act itself has disregarded the demand for universal coverage excluding the privileged classes and also does not cover nutritional security. Even with regard to the eligible persons covered by the Act, government has limited state-wide coverage of population and allocation of food grains without taking into account the number of eligible persons that would emerge from caste and economic census. This would leave scope for exclusion of the deserving. In Kerala, many of the existing beneficiaries who are in excess of the ceiling fixed by the Central government for the state are left out due to cut back in food grain allocations. State government would have to purchase food grains from the market if they wish to protect their entitlement. Besides, no protection has been built against increase in prices of food grains. Worse, government is creating a market for private capital by contemplating replacement of food grains with cash transfer and, for children, packaged food in place of hot cooked meals against the spirit of law and Supreme Court orders, and the sustained opposition by the civil society organizations. A more serious situation is created by the government insistence on Aadhar linkage and biometric identification as a precondition of entitlement. It strikes at the root of a right based law. This has deprived a large number of valid Ration cardholders of the entitlement and a few starvation deaths on the account of denial have also taken place in tribal areas. Besides, Central allocations for ICDS (Integrated Child Development Services) and Midday Meal Programmes have also been reduced which threaten even the existing level of implementation let alone their universalization as per the requirement of the law. Storage capacity of food grains under PDS (Public Distribution

System) as per CAG report is not adequate and can hold stocks for three months of food grains requirement and is not getting augmented. This would lead to procured food grains rotting in the open. Door step delivery also was not being implemented in many places as required under the law. Maternity benefit allowance has not been implemented yet Government purposes to start it with the new financial year but with conditionalities that it would be admissible only for the delivery of the first child contrary to the provisions of the Act. Vulnerable categories of persons such as homeless and destitute would continue to remain disentitled for lack of a permanent address. Besides, many items contained in the Schedule remain unimplemented. The Government is celebrating the exclusion of a sizable number of card holders from the benefit of the Act on the basis of Aadhaar seeding by claiming they are fake claimants and Aadhaar has saved wasteful outgo of subsidy. The real reason is that the neo-liberal ideologues have been opposing food security and other subsidized entitlements as wasteful and unproductive expenditure which increases fiscal deficit. It is to please this influential lobby and to placate foreign investors, international financial interests and rating agencies that there is a determined push to cut down subsidies if not compulsory eliminate them altogether. Identity restrictions are one way of realizing this objective.

Environmental Laws

Against the trend world over of making their environmental laws, standards and controls more stringent to arrest the increase in adverse social and environmental impacts of industrial and development projects in respect of location, clearance procedures, monitoring and penalties for violations, a reverse process is witnessed in India of loosening and relaxing environmental laws or exempting projects from the operation of existing environmental regulations to satisfy the industrial and business interests. The particular targets of this soft environmental governance is the provision of environmental clearance of a project which assesses the ecological damage of a project. Industrialists, politicians and neo-liberal development economists are irked by it as it is a bottleneck in the swift clearance of a projects and therefore castigate it as a continuation of License Raj. This view unfortunately, is also shared by a cabinet committee on Reforming investment Approval and implementation procedures in its report (2002). (Shrivastava and Kothari, 2012) As a result, a draft notification gazetted in 1994, which itself was a much watered down draft notified for public consultation in 1990s, removed the requirement of separate clearance for projects located near ecological sensitive areas. In 2006, government went a step further and a completely revised notification was issued which makes it even easier to get clearance for projects and whittled away democratic consultation in decision making regarding them. It also transferred the power of clearance of large categories of projects to the State governments. This was done by not even laying down the institutional mechanism of consultation with local community. The new notification particularly weakened the provision of compulsory public hearing. Worse, it also did not allow third parties not affected by projects such as NGOs and activists to take part in it but permitted doing away with the hearing altogether in certain circumstances. It also removed tourism from the list requiring environmental clearance. This indifference to enforce environmental safeguards is also evident from the speedy environmental clearance of projects by the Central government at the rate of 2-3 per day. With grossly understaffed environmental regulators at different locations, virtually no monitoring is taking place as a project may be monitored once in 3-4 years. Further, this monitoring makes no record of non-compliance of objections. The deliberate neglect of compliance of environmental laws is best evidenced by more than 50% of projects cleared in a year without generating monitoring reports. ‘The Forest Conservation Act has virtually become a Forest Clearance Act’. (Shrivastava and Kothari, 2012 p 149). The diversion of forest has hugely increased after 2001 and the state governments even want to scrap the forest clearance requirement altogether. The phenomenal increase in commercial exploitation of coastal and mining areas post 1990s has seriously affected the livelihood and quality of life of communities dependent on them besides damaging ecological integrity of the resources. Nothing better demonstrates the clout of commercial interests in policy making than the changes made in coastal regulation zone notification life issued in 1991 to regulate activities detrimental to local people and integrity of the resources and various forms of. It has been changed nineteen times so far with a view to permitting activities relating to mining, port construction and operation and oil and natural gas exploration and SEZs. (Shrivastava and Kothari, 2012) In 2006, it changed the notification further pursuant to the Swaminathan Committee Report which it constituted to review it. This move has been temporary halted due to strong resistance from civil society and fisher communities. But weak enforcement has permitted many industrial, mining moving and commercial projects to come up on the coasts. This is leading to destruction of coral reefs, mangroves and beaches and huge marine pollution resulting in loss of traditional livelihoods dependent on these resources. Even areas which were restricted or closed to visitors and even the local communities have been opened up for tourism. Willingness to ignore environmental implications of this mass and unregulated tourism for development projects is leading to huge number of violations of laws with government looking the other way. This is weakening natural ecosystems and disruption of wild life corridors. (Shrivastava and Kothari, 2012) Several states have relaxed their land laws including those of the tribals to permit purchase of land for construction of tourist resorts construction of new township (such as, Lavasa in Maharashtra) and undertaking other development projects in tribal area. The obsession with growth even led to opening up of prohibited areas which were No Go Areas for any economic activity. This is done either by outright denotifying the area from the list or permitting diversion of the area for the project by the National Board for Wild Life. This has severely threatened the survival of local tribal communities and endangered wild life species. Worse, the National Environmental Policy 2006 makes development as a right rather than protection of environment ignoring civil society objections and protests it. (Shrivastava and Kothari 2012) The choice of experts in the committees constituted under the Environmental Protection Act is so designed as to get endorsement of government stand. The most damaging social aspect of this weak environmental governance is that it dilutes and even violates legal provisions / social guarantees granted to tribal communities. In regulation of transfer of land, recognition of forest rights, land reform laws etc. the imperative of fast growth has even led to hostility against civil society organization (particularly NGOs) for raising environmental concerns in respect of development projects. It has blacklisted NGOs that raise these concerns and stopped their foreign funding and is also seeking to restrict recourse to PIL for invoking judicial intervention. Militarization of areas affected by Naxalism is clearly intended to protect capital’s penetration into tribal areas for industrialization and mining for taking possession of land and forest held by tribal communities and prevent any resistance from posing any challenge. The Government’s disregard for environmental protection is also evident from less than 1% allocation to its central agency entrusted with the task though public expenditure in budgets has been increasing. Despite strong advocacy, there been no initiative in integrating environment in growth and development planning and green accounting notwithstanding the government’s claim of pursuing sustainable development.

MNREGS

MNREGS (Mahatma Gandhi National Rural Employment Guarantee Scheme) is the most significant of statutory right based entitlement in the country entitling those seeking work to get 100 days of work failing which to get compensation. It has several new features such as decentralized decision making, democratic participation, need based planning, transparency and social accountability etc. The implementation of the Act reached its peak in 2009 which itself fell far short of entitlement but has not even achieved it thereafter again. But the pressure of the opponents of this law which include industry, large and medium farmers, neo-liberal economists and exaggerated adverse impacts highlighted in media about wastage of resources, leakages and corruption has led to persistent attempts at weakening the law, a process which started in UPA II itself but has been more aggressively pursued in the current dispensation. The changes made by NDA are conveyed by Asset fundamentalism over wage of priority a target driven top down approach of the present regime towards the type of projects to be taken up, changes in the Schedule of the Act which insist that 60% of the works to be taken up in a district in terms of cost shall be productive assets directly linked to agriculture and added individual assets in category B and infrastructure for National Rural Livelihood Mission complaint Self-help groups under category C. (Pankaj, 2017) This is over and above the additions to the list of permissible works mostly related to pucca structures made during the closing years of UPA II all of which had the net effect of reducing the volume of job creation as these works were less labour intensive and required skilled rather than unskilled labour. The second significant shift has been insistence on convergence between different programmes as the central motif with three levels of operation in the district (a) convergence with agriculture (b) convergence at the level of micro-level planning and c) convergence at the level of resources. This has been further elaborated with details insisting that in respect of (a), 60% of works must be related to agriculture and added activities, in respect of (b), convergence with NRLM, (National Rural Livelihood Mission), DDU (Dean Dayal Upadhyay Gramin Kaushal Yojna), IAY (Indira Awas Yojna) and NSAP (National Social Assistance Programme), and at the level of (c), pooling together of resources of MNREGS and other flagship programmes. This would have the effect of reducing number of days of unskilled employment, delegitimizing role of PRIs (Panchayati raj Institutions) in decision making on need based works and slowing down of implementation due to the incapacity of local PRIs to carry out the complex task of planning and consequent taking over by line department bureaucracy. (Pankaj, 2017) The target driven approach has completely destroyed the demand driven nature of the programme which was its strong feature. Bureaucracy has failed to issue receipt for demand so as to avoid payment of compensation in the case of non-provision of employment. Institutional mechanisms of a grievances redressal and social audit have remained weak. Manpower support is inadequate and is worst in tribal areas where the demand for work is high. Besides, allocation for the programme has been short of requirement notwithstanding its increase in recent years. Arrears of wages and wage material continue to create disruption in implementation forcing people to migrate in search of work. Worse, allocation is given on the basis of labour budget which fails to protect the real demand and underestimates it. Even this reduced demand in the labour budget is delegitimized by a target budget emerging from negotiation between the local agencies and the state governments and further pruned by central agencies for a final issue of sanction order. (Pankaj, 2017) This rationing of job creation at different levels practiced over the years has completely destroyed the foundation of entitlement and has turned it into a supply driven programme like any other. The targeted asset creation has increased centralization and delegitimized the democratic decision making of Panchayats and the latter have merely become instruments of putting a seal of approval on proposals put up bybureaucrats and technocrats. In addition, continuing bottlenecks in timely payment of wages, hassles in getting payment through banks and post offices, loading the programme with too many objectives and failure of local agencies to start work when the demand is most acute has frustrated people and defeated the objectives of the programme.

Right to Information Act

The Right to Information Act was another land mark legislation enacted by UPA I. This was the culmination of a very long campaign launched by three activists in Rajasthan – Aruna Roy, Shankar Singh and Nikhil Dey through their organization Mazdoor Kissan Shakti Sangthan in the course of their attempts to help MNREGS workers seek information about muster rolls, bills and vouchers. Accessing these records became the means to secure their entitlements but also to understand the manner in which programmes for the poor were being implemented. The campaign sought to link Right to Information with Right to life and thus to bring it within the ambit of Article 21. This provided a platform for a much wider mobilization for linking right to information with economic and democratic rights. The campaign was intended to strike at the regressive colonial laws and regulations which kept a lid on all information about the working of the government – Official Secrets Act 1923, Indian Evidence Act and Government Servants Conduct Rules. The demand of citizens to have right to information is supported by several Supreme Court decisions as a right flowing from Art 19 (1) (a) of the Constitution. It has been considered as a human right necessary to make governance transparent. The act was finally passed in May, 2005 in Parliament and notified in June 21, 2005. The implementation of the Act has, however, faced resistance from several quarters. The resistance has come specifically from bureaucracy in public institutions manifested in repeated proposals for amendments in the Act as it curtailed their discretion and exposed them to possibility of harassment. This was corroborated by the All India Perception Survey (World Bank) carried out among the bureaucrats. The resistance is on account of nurtured by the culture of secrecy, notified by colonial era cited above. This was recognized by the Second Report of Administrative Reforms Commission. Even doubts have been raised within political establishment about the desirability of applying law to specific areas (World Bank, 2012). Some agencies have refused to come within the purview of the Act such as the Supreme Court, the political parties etc. But the working of the Act has also been constrained by lack of preparatory action by the government, non-provision of adequate manpower and financial resources, and creating a facilitating mechanism for filing applications and improving capacity of government agencies to supply information (Das, 2013). The Act has been in operation for more than 12 years. Yet, the awareness level about the right and its utility is still very low, particularly in the rural population and disadvantaged groups. The constraints faced by the citizens include non-availability of user guides and PIOS (Public Information Officers) at the district level, lack of signage in locating the of PIOS and lack of assistance in filing applications, non- friendly attitude of PIOS, poor quality of information received, receipt of information after considerable delay and repeated visits, lack of infrastructure, poor record management, and failure to make self-disclosure (Das, 2013). The diminishing enthusiasm on this account is reflected by lack of effort for going in for appeal and very few going for second appeal. Usership is concentrated in the middle class in urban areas (Priya, 2007). There has been no attempt to remove these constraints to empower rural poor to use it as a tool of empowerment. Government has defeated the objective of this ground breaking legislation by failing to remove constraints faced by users and efforts to introduce systemic changes in rules and procedures governing disclosure of information so as to replace existing approach of procedural compliance rather than of outcomes in terms of quality of information to enable citizens to hold the government to account for its performance (World Bank, 2012).

The above evidence is a clear indication that laws conferring entitlements may be enacted by the State as a political response to multiple pressures at a given point time when it is vulnerable politically but it lacks sincerity and commitment to implement them. Worse, it even tries to undo what has been gained by people. This results in undermining of rights gained by people after a long struggle. The lack of sincerity and commitment to enforce the rights is reflected in non-provisioning of resources – financial and manpower for this purpose, failure to break bureaucratic resistance and subversion, lack of effort in building internal capacity of public institutions charged with delivery of rights. But the most damaging and serious has been willful efforts to violate the laws by diluting their provisions, granting exemptions from their application and manipulating procedures to produce manufactured compliance and diversion of the very resources for accessing which many of these rights have been created. The government privileges growth over people’s interests and caters to the demands of business, industry and investors, international financial institutions, neo-liberal economists, upper echelon of the middle class for this purpose. These rights are viewed by adversary classes as irritants in getting speedy clearance of projects at least transaction cost and in shortest possible time as also wasteful and unproductive outgo of public resources adversely affecting macro-economic stability. The task of the people is cut out. They not only have to struggle to expand the basket of rights for a dignified survival but to continue the struggle to get them implemented and even, more important, to ensure that the government does not violate or dilute them at the behest of the adversary classes. The battle is more complex and harder as they are pitted against the state, capital and the middle class who are the main beneficiaries of the neo-liberal growth all at the same time. They need all the support from progressive political formations and sectors of civil society in this task. For the struggling poor, the battle for rights is never completely won and the field never quiet.

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