Uphold workers’ rights during lockdown
An amendment or fresh enactment aims to replace the “laws of imperfect obligation” which includes laws defining what a contract is, what a crime is or a law prescribing the right and duties of the subjects.
Perhaps, it is because of this reason the concept of amendment was introduced in order to make the legislation up-to-date. But could amendment or fresh enactment work as pill to cure all ills? If foreign precedents are taken into consideration, it gives a message that mere enactment is not a solution to every problem. In fact, the problem lies in implementation.
Take the example of India. The Unorganized Workers’ Social Security Act, 2008 is brought into effect to provide for the social security and welfare of unorganised workers and for other matters connected therewith or incidental thereto. The Act, which is home to as many as 17 sections, in its Section 3 (1) envisages for the welfare schemes for the unorganized workers that include: life and disability cover; health and maternity benefits; old age protection; and any other benefit as determined by the Central Government. The legislation does not leave state governments without responsibilities.
Section 3(4) casts an obligation on the state governments to ensure provident fund; employment injury benefit; housing; educational schemes for children; skill upgrading of workers; funeral assistance; and old age homes. This way, the legislation casts a shared responsibility on the centre and states to introduce welfare schemes for the betterment of people engaged in unorganized sectors.
However, Section 10(3) provides “Every unorganised worker shall be registered and issued an identity card by the District Administration which shall be a smart card carrying a unique identification number and shall be portable.” Regrettably enough, India is yet to see a centralized database even after 12 years after the enactment of the Act, 2008. The legislation is yet to fulfil its aims and objectives. It appears like a flower without fragrance. The government of India has had an opportunity to register the unorganized workers and realize the goals of this legislation by providing social welfare schemes to them but the government’s insolence for the daily wagers or migrant workers has been understandable throughout the Coronavirus lockdown period.
Meanwhile, the inter-state migrant workmen (Regulation of employment and conditions of service) Act, 1979, which features as many as 36 sections, aims to regulate the employment of inter-State migrant workmen and to provide for their conditions of service and for matters connected therewith. Section 2 (1)(e) defines who the “inter-state migrant workman” is. It says “inter-State migrant workman” means any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether with or without the knowledge of the principal employer in relation to such establishment.
Section 12 of the Act, 1979 obliges the contractors to issue identity cards to every inter-state migrant workman. The contractors are under an obligation to ensure regular payment of wages, accommodation or ensure suitable conditions of work. Section 15 casts a mandatory duty on the employer/contractor to provide journey allowance of a sum not less than the fare from the place of residence of the inter-State migrant workman in his State to the place of work in the other State both for the outward and return journeys and such workman shall be entitled to payment of wages during the period of such journeys as if he were on duty. Apart from this, Section 12(1)(c) obligates the contractors to pay journey allowance to every migrant worker.
However, hundreds of thousands of migrant workers’ right to work and earn breads for their family members have been compromised due to unprecedented lockdown. Their hard times due to unpaid journey allowance and salaries, penniless situations, hunger or journey for home on foot miles away made national and international headlines. But, the government at the helm grossly failed to take cognizance of this legal mandate and the concerns of migrant workers and daily wagers remain unaddressed.
Talking about legal mandates in Nepal, the Infectious Disease Act, 1964, which is brought into force to impose a nationwide Coronavirus lockdown, provides rights tn the state agency to impose fine of Rs. 100 or punish quarantine breakers with one month of imprisonment or both. It allows the enforcement agency to inspect any area, goods or persons suspected of infectious disease.
But the law does not prescribe duties of the government towards the vulnerable citizens. Neither the law ask the employers to pay allowance, food or financial aid to the workmen during lockdown, nor does the legislation oblige the state to compensate the victims of the infectious diseases or lockdown-deprived work.
Nevertheless, a welfare state deserves to stand with her vulnerable citizens; they cannot be merely treated as taxpayers. The vulnerable citizens and industrial establishments too have to be compensated for the loss caused by natural or manmade disasters.
In these contexts, there is a dire need of enacting a comprehensive law to address the needs and aspirations of people during pandemic situations. The meeting of Legislative Management Committee of Parliament held on April 26 has urged the government of Nepal to amend the (outdated) laws relating to epidemic and disaster management. The Committee has said that Nepal is in warrant of a progressive law to battle the epidemic-like situations. In fact, a law which does not prescribe the rights of the citizens and duties of the state towards their citizen deserves to be amended or substituted with fresh enactments showing a clear roadmap of obligations and civil liberties.
Yet, the Indian experience suffices to conclude that mere enactment is not enough. Political commitment and strong determination to implement the laws in letter and spirit is required.
The writer holds an LL.M and is formerly a lecturer at Kathmandu University School of Law.
Published on 5 May 2020