24 December 2020: The Indian Express Editorial Analysis
1) The insecure workers
GS 1 – Social Empowerment
- Recently iPhone manufacturing factory namely Wistron's contract workers attacked on the plant because of non payment of wages. But company asserts that it had deposited the money in the account of the contractor.
- It is possible that the contractor who supplied the labour may be fined or even blacklisted.
MAJOR PROBLEMS IN THIS REGARD:
1. Contract workers:
- They are hired by contractor and are not on the payrolls of the company where they work. This system of contract worker have been at the centre of much dispute over the last decade.
- Such third-party contracts which give the responsibilities wherein the contractor is responsible for the payment of wages.
- In this system, principal employer is responsible for welfare facilities and scrutiny.
2. Production linked incentive scheme:
- This year government notified this scheme. After starting this scheme, Wistron hired a large number of contract workers.This Scheme is for the mobile manufacturing sector.
- Under this scheme, government subsidies offered for a limited period. This offer is for five years for mobile handsets at rates starting from 6 per cent and declining to 4 per cent on incremental sales over a specified base year level.
- The objective of the scheme is to create “good jobs”, it may have been more useful to link these incentives explicitly to job creation mainly for those jobs that are directly on the firms’ payroll and not the contractors’.
3. Atmanirbhar Bharat Rozgar Yojana: This scheme is offering provident fund subsidies to employers for hiring new formal workers. As this scheme is for formal workers, but Wistron hiired contract worker.
SITUATION OF CONTRACT WORKERS:
- According to the Annual Survey of Industries (2017-18), contract workers in the registered factory accounted for 36.4 per cent of total production workers.
- The works of contract workers is same as regular employed workers.
- But contract workers receive lower wages and limited social security benefits and also operate under poor working conditions.
FIXED TERM EMPLOYEES:
- Fixed-term employees can be directly hired by employers without any contractor.
- Like permanent workers, fixed term employees are ensured of the same work hours, wages, allowances and statutory benefits.
- In the situation of non-renewal of the contract of employment,fixed-term employees are not entitled to any termination notice or payment in lieu of services terminated.
- In the fixed term employment,employers are not required to provide retrenchment benefits.
- Hence this provides the flexibility to the enterprises to adjust their workforce as per their requirements. As well as fixed term employment offers workers some amount of job security.
- It is worth noting that fixed-term employment in India is indeed quite open-ended. The Code does not specify a minimum or maximum tenure for hiring fixed-term employees. Nor does it specify the number of times the contract can be renewed. The absence of such safeguards can, in fact, lead to an erosion of permanent jobs.
- Workers may find themselves moving from one fixed-term contract to another, without any assurance of being absorbed as permanent workers by their employer. While this does not bode well for labour market security, it is clearly a very flexible arrangement for firms.
WHY CONTRACT WORKERS?
Despite a liberal fixed-term employment regime, firms continue to hire contract workers due to following reasons -
- Cost of hiring: The cost of hiring contract workers continues to remain lower than the cost of hiring fixed-term employees. Fixed term employees are required to be paid pro-rata wages and social security including gratuity.
- Transaction costs of the recruitment: in the case of contract worker the monitoring, legal compliance and litigation costs are shifted onto the contractor. Hence it reduce the transaction costs of recruitment to firms.
- To encourage a shift to fixed term employees from contract workers, the government should have completely prohibited the use of contract labour in core activities.
- The core activities are those activities for which the establishment is set up and includes any activity which is essential or necessary to the core activity.
- The core activities does not include services such as security, catering and sanitation.
- The Labour Code on Occupational Safety and Health has allowed for use of contract workers in core activities under certain conditions which include sudden increase of volume of the work. Hence, this provision encourages the use of contract workers and also undermine the initiative of introducing fixed-term employment.
- To discourage the use of contract workers, the government introduced the option of fixed-term employment in the Code on Industrial Relations (2020).
2) Key lesson from farmers protest is that steamrolling Parliament backfires
GS 2 - Govt. policies and interventions
GS 3 - Agriculture
Lord Acton rightly warned: “The moment a ruler or state tries to achieve perfection, or 'one view' of how things should be, is when things start to go bad”.
- "The extraordinary haste with which the farm bills were pushed through both the Houses has created the present crisis, which can only exacerbate the economic woes caused by the pandemic."
- The enormous economic loss and the dislocation of normal life around Delhi could have been wholly avoided if the Bills had not been bulldozed through Parliament.
LEARNINGS FROM THE PROTEST AGAINST THE BILLS:
- Parliamentary procedure: The agitation teaches us the importance of following parliamentary procedure not just in letter but in spirit as well.
- Reform-based bills: There are strong indications that the new legislation is desirable and will bring in much-needed market reforms in the overregulated farm sector.
- Lack of evidence of failure: As on date, there is no contrary evidence that the new proposals will adversely affect farmers in the long run.
- About MSP: There is no justification for a minimum support price regardless of demand and supply.
- LPG lesson: The benefits of liberalising the non-agricultural sector of the economy in 1991 established that, in the end, market forces cannot be ignored.
- Constitution is king: Following constitutional conventions always pays dividends - it benefits the nation and preserves the dignity of Parliament.
- Time-taking progress: The delay due to parliamentary procedures prove that the new law is really the right choice and those opposing it have placed their short-term vested interests ahead of the national interest.
- Presence of criticism: Legislation that benefits the nation but hurts vested interests will always meet with vehement opposition.
- Evidence of failure: There must be empirical or other evidence that shows the deleterious economic consequences of continuing with the status quo.
- Orders and judgements: For the first 30 years, under the Essential Commodities Act, 1955, several control orders were passed on products such as cement and steel, and these were intended to ensure their availability at fair prices.
- Result: The result was just the opposite: Severe shortages, a huge black market and massive corruption.
- Other results: Equally disastrous were laws relating to monopolies and industrial development that left India a stunted nation with dwarf corporations.
LOOPHOLES IN PASSING OF THE BILLS:
- No Voice vote: Regrettably, the three Bills were passed on a Sunday (September 20) by a voice vote despite a request for an actual vote.
- No discussion: The demand by the Opposition for discussion was also turned down.
- Select Committee losing importance: It is a matter of concern that fewer and fewer bills are being referred to Select Committees or even deliberated upon. Recently Chakshu Roy wrote that while 71 per cent of the bills were referred to a Select Committee in the 15th Lok Sabha (2009-14), only 25 per cent were so referred in the 16th Lok Sabha (2014-19).
WHAT IS THE PARLIAMENTARY PROCEDURE?
- Majority: The ruling party undoubtedly commands a majority and has the right to implement the promises it has made in its manifesto.
- Parliamentary Rule: But, Parliament includes the Opposition as well and even though a bill may be certain to become the law, it is necessary that the established procedure is followed.
- Select Committee recommendations: If a proposed legislation has far-reaching consequences, it is best to refer it to a Select Committee for consideration.
- Expert views: The Select Committee can, and often does, get the views of experts on the impact, particularly economic, of a proposed law.
- Final decision by the Parliament: In the end, it is always open to Parliament to accept or reject the recommendations of the Select Committee, but every citizen has the satisfaction that a new, important legislation has come into force after careful scrutiny.
- Debate: The benefits of a new law should be demonstrated through debate and discussion.
- Select Committee: As the farm bills marked a radical departure from the existing system of selling agricultural produce, the least that could have been done was to refer them to a Select Committee.
- Trial before implementation: If laws like the farm legislation are likely to meet with opposition by vested interests, the best way to demonstrate their beneficial effects is to implement the laws in select states or districts for a year.
- Feedbacks: The feedback can decisively demonstrate whether the new law can achieve its objects and prove beneficial to the nation.
- Acceptance of criticism: Every ruling party must have the humility to accept that there could be an opposing viewpoint, which needs to be heard and examined.
- The extraordinary haste with which the farm bills were pushed through both the Houses has created the present crisis, which can only exacerbate the economic woes caused by the pandemic. 7.
- It is still not too late to implement the new farm laws in select states and demonstrate their salutary effect.
- As philosopher Karl Popper put it: “Our greatest troubles come from our impatience to better the lot of our fellows”.
3) Justice as Relief-
GS 2- Important aspects of governance, transparency and accountability
- In a landmark verdict in Karan v. State N.C.T. of Delhi, the Delhi High Court has secured the right to restitution for victims of crime.
- The progressive impact of the judgment on victim jurisprudence will certainly be unparalleled.
- Even though Section 357 of the CrPC empowered courts to order the accused to pay “compensation” to the victim, this was rarely followed.
- This led the apex court to observe on multiple occasions that Section 357 must be used liberally.
- Ultimately, in Ankush Shivaji Gaikwad v. State of Maharashtra (2013), the SC held that lower courts must apply judicial mind and record reasons for passing, or not passing, orders pertaining to the use of Section 357 — effectively making its application mandatory.
However, the lower courts found practical constraints while applying Section 357.
- First, these courts were limited by the language of Section 357, which allowed them to issue orders for only such compensation as may otherwise be recoverable in a civil court.
- Second, the courts were restricted by the absence of a uniform head under which compensation could be granted.
- Third, the absence of a uniform mechanism to calculate the paying capacity of the accused as well as ascertaining the impact of the crime on the victim prevented courts from granting compensation under the section without risking arbitrariness.
- Fourth, the absence of sentencing guidelines impeded the application of the section. Neither Section 357 nor the SC judgment in Ankush Shivaji Gaikwad came to the aid of the courts with respect to these limitations.
VIR & VIS:
- The significance of the Karan verdict lies in the Delhi High Court’s use of the Victim Impact Report (VIR) to determine the quantum of compensation.
- The Court’s version of VIR is loosely based on the concept of Victim Impact Statements (VIS), but with some significant differences.
- VIS is an instrument of victim participation, which effectively allows victims to inform the court in their own words as to how the crime impacted them.
- Barring minor variations, the VIS’s format comprises the description of physical injury, emotional harm, or the damage or loss to property as a result of the offence.
- VIS provides victims with the opportunity to directly address the court and, therefore, works towards providing them assurance about their concerns being heard and addressed by the court.
- It allows the victim to come to terms with the offence and makes the offender perceive and realise the impact of the crime on the victim. It also works to aid the court in determining the quantum of the sentence and fine.
DIFFERENCE IN UNDERSTANDING:
- It is in this sense that the Delhi HCs conception of VIR differs from a traditional VIS.
- The primary purpose of the VIR in the Court’s conception is to act as an aid to determine the quantum of compensation to the victim in conjunction with the paying capacity of the accused.
- The VIR will not be directly made by the victim before the court but will be filed by the Delhi State Legal Services Authority (DLSA), which shall conduct a summary inquiry to ascertain the impact of the crime upon the victim.
- The DLSA shall submit a report that reckons the paying capacity of the accused as well as the impact on the victim, after a conviction.
- The courts will have to pass an order of compensation based on this report, and in the manner laid down by the judgment. The scheme is binding on all lower courts in Delhi that deal with criminal cases.
- While the verdict generates hope for victims, there are certain concerns. For instance, the language of Section 357 does not differentiate between restitution and compensation.
- Restitution includes reparation made by the offender while compensation is paid by the state. Unless this difference is statutorily recognised, ambiguity is bound to persist.
- Moreover, VIR/VIS should not remain merely limited to calculating restitution; it must be effectively used in the sentencing process — especially because the victim is not a party when the court hears the offender on the question of the sentence.
- The need of the hour is that the courts come forward to adopt VIR/VIS as one of the best practices in the interest of justice to victims of crime.