International Labour Organization’s Domestic Workers Convention, 2011

September 5, 2013 marked the coming into force of ILO's Domestic Workers Convention, 2011 (No. 189) which extends the basic labour rights of workplace to domestic workers. It is a huge development in the struggle to recognise the dignity and value of domestic workers and giving them their long-due rights of collective bargaining and fair terms of employment. In the past, the ILO, in its report 'Domestic workers across the world: Global and regional statistics and the extent of legal protection', had identified the widespread prevalence of domestic workers (workforce of 53 million estimated worldwide) and had put forth a case for their legal protection. 

Eight countries have ratified the Convention so far while several others have initiated efforts in this direction. India must also take cue from these global developments and show sensitivity as well as respect to the enormous number of domestic workers it houses by drawing out some basic rights for them. According the aforesaid Report, India is home to eight percent of the world's domestic labour, yet it has never attempted to take steps for their protection. While some states have ensured minimum wages to domestic workers, there has not been a single attempt at the national level but for the draft bill submitted by the National Commission for Women (read more here). In light of the deprivation, disentitlement and neglect that domestic workers have faced over the years at the hands of the state, it is high time the Parliament and the state legislatures start thinking seriously in this direction. 

Land Acquisition Bill and the dilution of the principle of 'land for land'

Among the euphoria surrounding the passing of the new Land Acquisition Bill, that a key provision ensuring land to those displaced by irrigation projects was done away with has gone largely unnoticed. In her column on the Business Standard, Sreelatha Menon noted that this deletion took place in the intervening period between its passing in the Lok Sabha and Rajya Sabha at the behest of the Madhya Pradesh government. It must be noted that the principle of compensating land for a farmer's land was put into place by the tribunal established in Narmada water dispute where the government was ordered to give effect to this principle in compensating the victims. However, while land compensation was awarded to a large number of families in Gujarat and Maharashtra, the state of Madhya Pradesh resisted giving land as compensation.

With the overnight removal of the provision guaranteeing an acre of land to an affected family after passing in the Lok Sabha, the government has taken a stand that flies against the victories achieved in the decades-long struggle in the Sardar Sarovar project as well as the ideals of "fair compensation" which the Bill is purported to be premised on.  

Democracy vs Capitalism: Role of social-welfare schemes in the privatisation era

There seems to be an inherent contradiction between the idea of a free market economy of the globalised era and that of enforcement of 'positive' socio-economic rights by the state. This is largely due to the divergence in the role of the state that either sees as adequate. Though this conflict is being increasingly experienced by developing economies, there isn't much normative literature that has emerged on the subject, with the exception of a few very recent writings highlighted in a previous post on this blog.

Ashutosh Varshney, in his column in the Indian Express, has come out with a possible explanation to this conundrum which the Indian economy is also facing today. He characterises it as a clash between democracy and capitalism and concludes that the government must try to ensure both mass welfare as well as economic freedom in order to attain the fine balance between the two. He believes that while UPA-2 has attended to the former, it has taken growth for granted and has thus faltered in facilitating the latter. The idea that he therefore carries in his piece is that if the government stops assuming that the economy will fuel itself on its own and takes positive decisions in this regard, socio-economic schemes brought in by the same government would not contradict the capitalistic ideals but will, in fact, complement them. 

The Ayes have it- The Bill to prohibit Manual Scavenging and the Street Vendors Bill passed by the Lok Sabha

  In a bid to set new records as the most productive Monsoon Session, the UPA government finally introduced and passed the Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill, 2012 on Friday, 6th September. Only last week, it was reported that over 500 safai karamchari workers staged a protest at Jantar Mantar, Delhi demanding the speedy passage of the Bill and an apology from the Prime Minister himself. The UPA had made promises in its first and second terms to eradicate the menace and indignity of manual scavenging. 

   The new bill prohibits the employment of manual scavengers and the construction of unsanitary lavatories which require manual handling of human excreta. It obligates each occupier of unsanitary latrines to demolish and convert them as per the sanitation requirements at his own cost. Offences under the Bill shall be cognizable and non-bailable and can result in imprisonment for upto 5 years. The Bill also promises to rehabilitate manual scavengers and provide for alternative employment. 

   On the same day, the Lok Sabha also passed the Street Vendors (Protection of Livelihood and Regulation of Street Vending) Bill, 2012. The Bill provides for the demarcation of vending zones under powerful Town Vending Committees and grievance redressal mechanisms. It overrides all existing state and municipal acts including the Code of Criminal Procedure in order to protect vendors from harassment from local authorities and the police. Such a legislation goes a long way to protect the livelihood and social security of millions of street vendors in our cities. It follows a Supreme Court directive in Gainda Ram and Ors. v. Municipal Corporation of Delhi and Ors. [(2010) 10 SCC 715] to the appropriate government to legislate and bring out a law to recognise and protect the fundamental right to livelihood of hawkers and street vendors. 

News Round-Up

Gujarat government notifies the Mandal-Becharaji Special Investment Region development project

Frontline reported here that Modi’s government has sanctioned a massive project in the Mandal-Becharaji Special Investment Region (MBSIR)  to develop an industrial hub and urban centre covering over 50,884 hectares. Farmers in the region however, insist that the land allocated for the project, which is supposed to be located on wasteland, is very much fertile.

Forest Rights in Action?

EPW has come out with a detailed analysis on the implementation of the Forest Rights Act in Odisha. The study reveals how the the State's approach has led to several possible beneficiaries being excluded from the benefits under the Act. Inadequate awareness, the lack of guidance by the implementation agencies and the sidelining of tribal oriented provisions in favour of individual beneficiaries are cited as some of the constraints to the effective operation of the Act.

Parliament passes the Land Acquisition, Rehabilitation and Resettlement Bill

After the National Food Security Bill, the UPA quickly followed up with the passing the LARR. The Lok Sabha passed the bill on August 29th and the Rajya Sabha on September 4th. The Bill replaces the Land Acquisition Act of 1894 and promises to assure transparency in the process of land acquisition and provide adequate compensation and rehabilitation for land owners and others affected by acquisition of land.             

The Food Security Bill is all but law now, but not everyone's happy.

The Rajya Sabha yesterday passed the National Food Security Bill, 2013 by a voice vote, following the Lok Sabha's nod on August 26th. The Bill now only requires Presidential assent to become the law. However, the current economic situation has led to serious doubts about the Bill, reflected in the media (here, here and here) and the markets both. The Sensex dropped 590 points the day after the Lok Sabha's assent, and already today the Rupee opened lower, as compared to yesterday's close. 

Following the concerns raised post the Lok Sabha debate, Harish Khare penned a strong-worded reply in the The Hindu to critics of the bill, pointing to the social obligations the State has towards the underprivileged sections of society and applauding the UPA for fulfilling its commitment. An excerpt: 

"Once every few decades comes a moment in a Republic’s life when a few fundamental commitments have to be renewed — or rejected. This is one such week, a time to test our core beliefs. It is also the time to ask a fundamental question: since when in this country has a veto been ceded to the markets and its manipulators, at home and abroad, to decide the issues of equity, social justice and economic fairness? There is something inherently perverse in the suggestion that this much-needed welfare measure would send out the “wrong” signals. Pray to whom? Those half-a-dozen professional financial manipulators in London?"

Khare, a former adviser to Prime Minister Manmohan Singh believes that the upper classes- controllers of public opinion today and the major beneficiaries of the earlier economic reforms- are directing an unfounded anger towards the State and the poor themselves. In a democracy, a single class of persons cannot, and should not be dictating the allocation of collective resources to the rest. The National Food Security Bill "strikes a new balance" between the interests of the various stakeholders of this democracy, and rightly so. 

Looking Beyond the Hysteria: Nuts and Bolts of the Food Security Legislation

Indian Parliament took a momentous step towards providing a legislative framework for realisation of the constitutional right to food when its two Houses passed the National Food Security Bill 2013. Yet, this transformative moment has been met with hysteric opposition in the media and the financial market. It has been called the 'biggest mistake India might have made till date'. As pointed out in the previous post, the Sensex dropped 590 points the day after the Lok Sabha's assent. The Credit rating agency, Moody's has also termed the legislation “credit negative”. Similar disapproval has been voiced by other commentators as well.

While the concerns over additional governmental expenditure at a time when India is confronted with massive current account deficit and a declining rupee cannot be brushed aside, there is need for a dispassionate and clear-headed analysis of what the Food Security Bill attempts to do and its likely impact on governmental expenditure.

As Kotwal, Murugkar and Ramaswami have argued, many critics of the Food Security Legislation have overestimated its cost by a not very insignificant margin. They refute the widely-cited estimate of Surjit Bhalla who had argued in his column in the Indian Express that the Bill will cost 3% of India's GDP. These scholars on the other hand argue that the subsidy increase as a result of the Bill will be firmly within 1% of GDP.

This can be surmised from the fact that we already have a gigantic network of procurement and storage that runs the existing PDS system. Anil Padmanabhan explains this further in his column, Five Myths About the Food Security Bill, where he argues that the incremental procurement and associated expenditure would be comparatively insubstantial in view of the our pre-existing procurement network. To quote Padmanabhan:

"it is claimed that the Food Security Bill would put a massive burden on an already overburdened exchequer as the government would have to procure additional food grain. Not only would they have to find more storage but also spend extra to procure the grain. Yes, it is fact that the procurement will have to be 62 million tonnes (mt) a year. But guess what, the country procured 72 mt of foodgrain in 2012-13. And in case you wonder, in the previous year procurement was 63.38 mt, with the existing infrastructure at its disposal.”

Admittedly, 1% of the GDP is not a trifling sum. However, it would be analytically untenable to cast the blame for our burgeoning fiscal deficit on the food security legislation alone. As Debraj Ray argues in his blogpost, Monkeying with the Rupee,

“The defense budget of the Government of India is double the projected expenditures of the Food Security Bill. For 2013-2014, a "modest increase" of 5.3% (following on somewhat less modest increases of 17.6% and 11.5% in the two preceding years) brings us to a sum of over 2 trillion rupees. There's more: the foreign exchange component of expenditure on defense is orders of magnitude higher than the corresponding component for food. Compare this to the FSB, which will spend half the military budget, and all of it on domestic production and distribution...just the total cost of subsidizing fuel use last financial year was 1.6 trillion rupees, substantially higher than the estimated expenditure under FSB.”

Therefore, critics of the Food Security Bill would do well to move away from their myopic and exaggerated focus on the financial implications of the Food Security Bill. As the Brazilian Supreme Court reminded its government in the context of right to health in S.T.F. Recurso Extraordinario [Extraordinary Remedy] no. 271.286-8:

“Between the protection of the inviolable rights to life and health, which are subjective inalienable rights guaranteed to everyone by the Constitution itself, and the upholding, against this fundamental perogative, of a financial and secondary interest of the State, ethical-juridical reasons compel only one possible solution: that which furthers the respect of life and human health”.

This is not to mean that diversion of funds and leakages that have become endemic are insignificant issues. Yet these objections do not merit an abandonment of the legal entitlement approach towards starvation and malnutrition. Such criticisms ignore that the Supreme Court's intervention in the PUCL case and its recognition of a constitutional entitlement has led to remarkable improvements in reduction in leakges states like Tamil Nadu, Odisha and Chhattisgarh. For instance, JNU Professor, Himanshu wrote in his column in Mint:

“The latest round of consumption expenditure for the year 2011-12 was released recently. Data from the survey shows the extent of leakage for rice and wheat, taken together, is 35% only compared with 55% in 2004-05 using the same method. Thus, within a span of seven years the reforms introduced by states have led to a significant reduction in leakages. What is also worth noting is not only the curbing of leakages but also the expansion in access to PDS. Only 23% households purchased cereals in 2004-05 and 39% in 2009-10. This number rose to 44.5% in 2011-12. In 2011-12, 50% of rural and 31% of urban population was purchasing cereal from PDS.”

Therefore, in spite of its limitations, especially in view of India's deficient legal infrastructure, legal entitlement approach has shown that it can expedite deep-rooted and systemic reforms in the administration of PDS in India and turn the right to food from a mere constitutional aspiration into a reality.

To quote Shoma Choudhary of Tehelka:

“The real significance of this Bill, however, is that in every democracy, the starting point must always be an articulation of rights and intention. A legislation itself can never be a magic wand: but the syllables of idealism rightfully belong to it. Enacting the Abolition of Untouchability did not mean the curse of caste disappeared overnight. Nor will the Right to Education ensure every child turns into a scholar in a day. Nor indeed can the Right to Information ensure governments will reveal all their dark truths. What legislations do is set forces into motion. They might take decades to mature but they create the correct moral framework. They give citizens the right to demand.”

Nonetheless, it would be a mistake to see the gains of the legislation as merely symbolic. It would be pertinent in this regard to remind ourselves of views of Philip Alston, John Norton Pomeroy Professor of Law at NYU and former United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary executions, who claimed in his book, Human Rights and Development that:

“creating a legal right to food is one way of creating a focus for public action in response to India’s nutrition emergency, and for increasing the poor and underprivileged’s sense of entitlement to state action on nutrition. Moreover, the more politicized the deprived are about their right to food, the more vigilant they will be in policing the various state nutrition schemes that already exist, and in combating the endemic corruption that diminishes the effectiveness of existing measures.”

From that vantage point, the onus lies on commentators to shift their gaze from a reductionist opposition to the National Food Security Bill to its nuts and bolts, which even the most ardent supporters of the Bill admit, leave considerable room for improvement.

In this post, we would like to draw attention to the following main areas:

a) Identification of Beneficiaries: The most important flaw of the Bill is that it does not really create enforceable entitlements for anyone, because the selection of eligible households is left to the discretion of the government. Instead of specifying the exclusion criteria or making it mandatory for state governments to specify exclusion criteria and deeming everyone else eligible, section 15 leaves the identification criteria for the State Governments to evolve. As a result, the actual number of rights holder would remain a contention question.

As Nitin Sethi reported:

“When the Bill was still in works, the answer to this was rather simple. The government would get a new BPL census done through the states – the Socio Economic Caste Census (SECC). The census would measure people for seven basic ‘deprivations’ and give a score to individuals on the basis of where they stand on this count. The Centre would decide a cut off score, and anyone above that score across the country would be eligible for the subsidised food grains. The UPA then decided against using the SECC for the food bill and informed the states that they were – in a throw back to the targeted PDS era - yet again imposing state-specific cut offs based on this country-wide cap and updated State-specific poverty lines. The centre would provide subsidy for the numbers it had set and the States could choose who they wanted to give the grains to by their own criteria and design.”

b) Use of Aadhaar: Section 18 (2) (d) allow “leveraging 'Aadhaar' for unique identification” for the purpose of this legislation. In view of the cloud of uncertainty over the UID Project for the lack of a statutory mandate and its implications on the right to privacy, linking entitlements under the law with Aadhaar may not be advisable. Moreover, as Reetika Khera has shown, other less expansive technological solutions like smart cards , bank payments, etc. have been remarkably successful in minimising leakages in states like Chattisgarh. Therefore, Aadhaar may not be necessary for the successful implementation of this statute.

c) Grievance Redressal Mechanisms and Civil Society Participation: Active involvement of court-appointed Commissioners and civil society organisations, notably, the Right to Food Campaign, was critical in shaping the success and direction of review by Supreme Court of executive policies in the PUCL case. Indeed, Lauren Birchfield and Jessica Corsi have noted in their work, Between Starvation and Globalisation: Realizing the Right to Food in India [31 Mich. J Int'lL. 691]:

“In terms of defining, unpacking, and explicating the right to food, the Campaign and Commission have been key contributors to the development of the PUCL litigation. Gains made in the struggle to define the right to food are attributable to the constant involvement of civil society and to the agency awarded to directly affected persons and groups. Incorporating the people whose rights have been denied has allowed for proper identification of immediate needs and systemic deprivations and has resulted in the construction and authorization of appropriate and effective schemes. Most importantly, perhaps, Campaign and Commission involvement has integrated the public into the knowledge base supporting the right to food, empowering individuals to both identify their rights and to determine how those rights should be realized.”

Therefore, the grievance redressal mechanism contemplated under the legislation must be receptive to intervention and feedback by civil society organisations. While Section 22 does provide for non-official representation in the State Food Commissions, more needs to be done in carving out a genuine space for civil society organisations.

d) Costs-Sharing: Given that many states would have to incur substantial expenditure in expanding the existing distribution, transportation and storage networks, it would have been prudent for the statute to resolve the contentious matter of sharing of these costs. Past experience with NREGA indicates that this issue can become politically explosive and hence, categorical legislative imperatives would have been useful.

None of this calls for neglect of the financial implications of the Food Security Bill. However, we submit that dismissing the constitutional entitlement to food on the ground of fiscal deficit is ethically, politically and economically untenable. Moreover, criticisms of this legislation as a politically motivated exercise ignores the fact that the government and the Parliament are not only expected but also obliged to respond to pressure from the grassroots. Instead of bemoaning the Bill as political, perhaps it is time to celebrate it as a symbol of a renewed social compact between the state and its citizenry.