The HINDU Notes – 12th May 2020 - VISION

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Tuesday, May 12, 2020

The HINDU Notes – 12th May 2020

📰 The need for a second chamber

The proposal for the Rajya Sabha as a second chamber had no easy sailing in the Constituent Assembly

•The Rajya Sabha came into being on April 3, 1952 and held its first session on May 13 the same year. The second chamber underwent severe prenatal scrutiny in the Constituent Assembly. The proposal for a bicameral central legislature for the country was discussed at length, with deep divisions between the proponents and opponents. From this churning that went on for eight days with the participation of leading members of the Constituent Assembly finally emerged the Council of States and its mandate. After 68 years, it is instructive to revisit the debates on the need for a Council of States and its performance since then.

•The central legislature that came into being under the Government of India Act, 1919 was bicameral with a Council of States comprising 60 members and a Legislative Assembly comprising 145 members. The membership and voting norms for the Council of States were so restrictive that only wealthy land owners, merchants and those with legislative experience could enter it. Women could neither vote nor seek membership. The Government of India Act, 1935 proposed an elaborate and improved version of the second chamber, but this never materialised. The Constituent Assembly, which was formed in 1947, after adoption of the Constitution became the Provisional Parliament and made laws till 1952.

Bicameralism and federalism

•Bicameralism is a principle that requires the consent of two differently constituted chambers of Parliament for making or changing laws. This principle came into operation in 1787 with the adoption of the U.S. Constitution. Its appeal grew in strength from time to time. At present, 79 Parliaments of the world (41% of the total number) are bicameral.

•Federalism has been in vogue since ancient times when some states got together to confer the power of law-making on a central authority. But modern federalism is entirely different given the complexity of geographical, regional, social and economic diversities marking the constituent units of a federation or a union. It is more so in India. The U.S. is a union of constituent states and so is India — each unit has a set of unique features.

•In The Federalist, the famous essays written in 1787-88 by James Madison, Alexander Hamilton and John Jay to explain the U.S. Constitution, it was stated that the second chamber enables a second and reflective expression of representative opinion besides checking the propensity to yield to the impulse of sudden and violent passions. The U.S. Constitution-makers were influenced by the proposition of the renowned French philosopher Montesquieu who said, “The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting”. Walter Bagehot later noted that the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or really impede revolution.

•Federalism and bicameralism are linked because the federal character of a nation comprising constituent units can be reflected in, and secured by, a bicameral legislature. Despite being conscious of the huge degree of diversities and attendant inequalities that marked British India, and aware of the emergence of independent India as a Union of States, the proposal for the Rajya Sabha as a second chamber had no easy sailing in the Constituent Assembly. It was subjected to serious argumentation and had a narrow escape.

Constituent Assembly debates

•As an illustration, a member of the Constituent Assembly, Mohd. Tahir, asserted that an Upper House was not essential and viewed it as a creation of imperialism. Professor Shibban Lal Saksena went further and warned that such a chamber would only prove to be a “clog in the wheel of progress” of the nation. The need of the hour was quick law-making, he said, which the second chamber would obstruct. He was perhaps referring to the role of the House of Lords in the British Parliament whose powers to veto the expenditure proposed was removed, and its ability to obstruct the laws made by the House of Commons was later severely curtailed in the early 20th century. Lokanath Misra vehemently opposed parity of powers in law-making for the Upper House.

•Proponents of the second chamber such as Naziruddin Ahmad felt that it would introduce an element of sobriety and second thought besides lending voice to the constituent units in the legislative scheme of things. M. Ananthasayanam Ayyangar argued that a second chamber would enable the genius of the people to have full play besides checking hasty legislation. It fell upon N. Gopalaswami Ayyangar to make a strong case for the second chamber. Replying to the debate on the motion, he argued that “the most that we expect the Second Chamber to do is perhaps to hold dignified debates on important issues and to delay legislations which might be the outcome of passions of the moment until the passions have subsided and calm consideration could be bestowed on the measures which will be before the Legislature.”

•As the differences over the need for a second chamber persisted even after adoption of the Constitution of India in 1950, Dr. Sarvepalli Radhakrishnan, the first Chairman of the Rajya Sabha, while replying to the felicitations on becoming the Chairman, said that Parliament is not only a legislative body but also a deliberative one which enables the members to debate major issues of public importance. He echoed what James Madison, one of the authors of The Federalist, said about 165 years earlier in an essay: that the role of the Upper House is to be a deliberative body besides balancing the “fickleness and passion” of the elected House.

•So, what follows from the above discussion is that the House elected directly by the people is susceptible to passions of the moment and electoral considerations. Their imprint on legislation needs to be checked by the second chamber whose members are expected to be sober, wise and well-informed with domain knowledge. The mandate of the Rajya Sabha, as can be gleaned from the Constituent Assembly debates and the experiences of other Parliaments, is legislation — to revise or delay legislation without proving a clog in the wheel of the progress; to represent the interests of the States as a federal chamber; and be a deliberative body holding high-quality debates on important issues.

•Against this mandate of 1949, it is in order to examine the functioning of the Rajya Sabha since its first sitting on May 13, 1952; assess whether it is either obstructionist or disruptive with governments of the day not having the required numbers; and assess its evolving nature. 

📰 Equal freedom and forced labour

The steps being taken by States, under the cover of COVID-19, of removing labour laws are grossly unconstitutional

•Soon after Independence, while the Constitution of a free India was being drafted, Dr. B.R. Ambedkar, the chairperson of the Drafting Committee, was asked to prepare a note on the idea of Fundamental Rights. In a terse document, B.R. Ambedkar observed that thus far, the purpose of Constitutions had been to limit state power, in order to preserve the freedom of the individual. But this was too narrow an understanding of freedom, because it ignored the fact that often, it was private parties — individuals and corporations — that exercised great sway over the economic and social life of the nation. B.R. Ambedkar therefore argued that fundamental rights must also “eliminate the possibility of the more powerful having the power to impose arbitrary restraints on the less powerful by withdrawing from the control he has over the economic life of the people” — or, more euphemistically, to tackle the “the dictatorship of the private employer”.

Labour rights

•B.R. Ambedkar, a long-time advocate for the rights of labour, and who had been instrumental in the passage of an eight-hour working day a few years before, was writing as part of a long-standing intellectual and political tradition. Labour movements had been key to the successful freedom struggle, and indeed, the 1931 Karachi Declaration and Bill of Rights — a fore-runner to the Constitution — expressly placed labour rights on a par with ordinary civil rights such as the freedom of speech and expression. In its Preamble, it declared that “political freedom must include... real economic freedom of the... millions”. These principles eventually found their way into the Indian Constitution in the form of “Directive Principles of State Policy”, while a few of them were retained as fundamental rights. Prominent among these was the right against forced labour, guaranteed by Article 23 of the Constitution.

•How do we understand the concepts of “force” and “freedom” in the backdrop of this history? A certain narrow understanding would have it that I am only “forced” to do something if there is a gun to my head or a knife at my throat. In all other circumstances, I remain “free”. As we all know, however, that is a very impoverished understanding of freedom. It ignores the compulsion that is exerted by serious and enduring differences of power, compulsion that may not take a physical form, but instead, have a social or economic character that is nonetheless as severe. In such circumstances, people can be placed in positions where they have no genuine choices left. As K.T. Shah, another member of the Constituent Assembly, famously wrote, “necessitous men are not free men”.

Judicial stand

•In 1983, the Supreme Court understood this point. The Court was called upon to address the exploitation of migrant and contract labourers, who had been put to work constructing the Asian Games Village. In a landmark judgment, PUDR vs. Union of India, the Court held that the right against forced labour included the right to a minimum wage. It noted that often, migrant and contract labourers had “no choice but to accept any work that came [their] way, even if the remuneration offered... is less than the minimum wage”. Consequently, the Court held that “the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service” was no less a form of forced labour than any other, and its remedy lay in a constitutional guarantee of the minimum wage.

•The judgment of the Supreme Court in PUDR vs. Union of India, and the constitutional history that it drew upon, provides us with an important perspective from which to understand basic ideas of freedom, especially in our present context. A market economy is sustained by a set of laws — the laws of contract, of property, and so on. This legal structure ensures that capital and labour do not face each other as equals across a mythical bargaining table. There is a structural inequality that enables the former, going back once more to B.R. Ambedkar’s language, to “make the rules” for the latter. This amounts to a form of “private government”, a situation in which there exists democracy in the political sphere, but unilateral term-setting in the context of the workplace. Of late, with the rise of the platform or gig economy, the rise of casualisation and precarious employment, and further fractures within the workforce, this inequality of power has only grown starker.

•The purpose of labour laws, which arose out of a long period of struggle (often accompanied by state-sanctioned violence against workers), has always been to mitigate this imbalance of power. The shape and form of these laws has, of course, varied over time and in different countries, but the basic impulse has always remained the same: in B.R. Ambedkar’s words, to secure the “rights to life, liberty, and the pursuit of happiness”, in both the public and the private spheres. In some countries, the path chosen has been to give workers a stake in private governance, through strong trade union laws and mandatory seats for labour in the governing boards of firms (“co-determination”). In other countries (such as India), the path has been to create a detailed set of laws, covering different aspects of the workplace, and depend upon State agencies for their enforcement.

The Indian situation

•To be sure, India’s labour law structure has been criticised on multiple counts. It is argued that it sets up a labour bureaucracy that is prone to corruption; that the adjudicatory mechanisms are inefficient; the rights that labour laws grant are effectively submerged in a creaking judicial system, thus providing no real relief; that the system creates an unconscionable tiered structure where a majority of the workforce, engaged in contract labour or informal employment, has very few rights, while those in formal employment have greater security, at least in theory; in a recent interview, it was even pointed out that many prominent labour unions prefer to arrive at an accommodation with the management, rather than represent the interests of their constituents.

•These problems certainly call for a debate on the future of labour rights, especially in a world where the rapidly changing nature of work is already rendering old concepts of jobs and employments obsolete (courts around the world, for example, are struggling with how to classify platform workers such as Uber drivers). But this debate must be guided by B.R. Ambedkar’s insights that remain relevant even today, the Constitutional guarantee against forced labour, and the understanding of force and freedom that takes into account differences in power. What is very clear, however, is that the steps being taken by various State governments, ostensibly under cover of the COVID-19 pandemic, are grossly unconstitutional: various State governments are in the process of removing labour laws altogether (for a set period of time). What this means, in practice, is that the economic power exercised by capital will be left unchecked. In his Note on Fundamental Rights, B.R. Ambedkar pointed out that this would be nothing other than the freedom to “increase hours of work and reduce rates of wages”. Ironically, an increase in working hours and a removal of minimum wages are two proposals strongly under discussion. If the Constitution is to remain a charter of freedom, however, it must be equal freedom — and that must be the yardstick from which we measure proposed legal changes in the shadow of COVID-19.

📰 Legal but not appropriate

Far-reaching changes have been made to labour laws without scrutiny by the legislature

•Over the last few days, many States have made changes to their labour laws. Himachal Pradesh, Rajasthan and Punjab have extended the maximum daily hours of work in a factory from eight/nine to 12, and allowed up to 72 hours a week in overtime. The provision of paying overtime wages at twice the normal rate would apply for working beyond these limits. Gujarat has made a similar change but the wages for overtime will be at the same rate (not double). Uttarakhand has increased the daily limit to 11 hours with overtime limited to 18 hours a week. Haryana has allowed work for 12 hours a day, and up to 60 hours a week, with overtime pay. Madhya Pradesh has made similar changes. These changes have been made through notifications issued by the State governments, and will be applicable for the next three months. M.P. has also suspended most provisions of the Industrial Disputes Act, 1946 (except those related to retrenchment and layoffs) for 1,000 days for State undertakings. In addition, M.P. issued an ordinance to amend two laws. The M.P. Industrial Employment Standing Orders Act will apply to establishments with more than 100 workmen (up from the existing threshold of 50), in line with the Central Act. The ordinance also enables the government to exempt establishments from the provision of another Act that provided for a labour welfare fund.

•The Uttar Pradesh government has approved an ordinance that exempts establishments from all labour laws for three years with some exceptions (safety and security of workers, provisions related to employing women and children, payment of wages on time and above prescribed minimum wages, and no bonded labour). As this will override provisions of some Central laws, it will require the assent of the President or, in effect, the assent of the Central government. The question is, was there sufficient consultation before all these changes were made?

Lawful changes

•As per the Constitution, legislature has the authority to make laws. Such laws could delegate powers to the government which are in the nature of detailing some requirements. For example, the Factories Act allows State governments to exempt factories from the provisions of the Act during public emergencies for a maximum period of three months. A public emergency is defined as a grave emergency whereby the security of India or any part is threatened by war, external aggression or internal disturbance. Most States have used this provision, presumably interpreting the current situation as an ‘internal disturbance’. Haryana has used a provision that allows relaxation of work hours “to deal with an exceptional press of work”.

•The Constitution also permits Central and State governments to make laws through the issuance of an ordinance when the legislature is not in session. Such a law needs to be ratified by the legislature within six weeks of the beginning of the next session. M.P. and U.P. are using this procedure.

The importance of consultation

•While the changes made are lawful, we need to see whether it is appropriate to make such far-reaching provisions without scrutiny by the legislature. Usually, any change in an Act follows a rigorous process of public consultation, scrutiny by committees of Parliament, and debates in the House before being approved. The changes described here have not gone through such a process. However, most of these have a three-month time limit, and any extension would need to be approved by the legislature.

•Interestingly, Parliament is consolidating 29 existing laws into four codes dealing with wages, occupational safety and health, industrial relations and social security. The first of these has been enacted, the Standing Committee on Labour has submitted the report on the next two, and is examining the last. The Code on Occupational Safety and Health does not specify the maximum hours of work but empowers the government to do so. The Standing Committee report states that the government agreed to incorporate a provision of maximum eight hours per day with overtime permitted for certain types of industry.

•Several regulations have been formulated to tackle COVID-19. There have been over 4,300 notifications by the Central and State governments since the beginning of March. Given the emergency, the government has to take quick action and change the response as the situation evolves. However, that should not be a reason to exclude the processes of consultation with and scrutiny by elected representatives. The legitimacy of state action in a parliamentary democracy comes from the fact that there is constant oversight and check by elected representatives. Parliament and State legislatures should find ways to meet and examine the measures taken by Central and State governments.

📰 Mandis linked to e-platform see 65% rise in count post-lockdown

On Monday, 177 more joined the platform, taking the total to 962 nationwide

•COVID-19 has given a boost to e-NAM, the national digital platform for agricultural trade, with the number of connected mandis, or wholesale markets, up 65% since the lockdown, according to Agriculture Ministry data.

•On Monday, 177 more mandis joined the platform, taking the total to 962 nationwide, giving farmers and traders another option at a time when transport disruptions and social distancing requirements have made physical mandi trade more difficult.

•The National Agricultural Market (e-NAM) is a pan-India electronic trading portal which networks the almost 7,000 existing mandis run by Agricultural Produce Market Committees (APMC) to create a unified national market for agricultural commodities, with a promise to promote real-time price discovery based on actual supply and demand.

•It was launched in April 2016 but progress was slow, especially as many States did not amend their APMC Acts; most farmers were not part of the cooperatives that would help aggregate the bulk quantity of produce needed to interest online buyers and most mandis did not possess the infrastructure to make the most of the platform.

•By January 2019, when the first inter-State trade took place, there were only 585 mandis connected to the platform, although the Agriculture Ministry promised to integrate 415 more mandis by March 2020. At the end of March 2020, however, the number of markets connected to e-NAM still remained stagnant at 585, even as the nation went into lockdown due to the COVID-19 pandemic and hundreds of mandis shut their physical gates.

•The Centre recognised the potential of e-NAM in overcoming some of the hurdles of the lockdown, and introduced some important new features in April: a trading module allowing Farmer Producer Organisations (FPOs) to trade produce directly from their collection centres without bringing it to mandis, a warehouse-based trading module and a logistics module offering users trackable transport facilities through aggregators with access to 11 lakh trucks.

•On May 1, Agriculture Minister Narendra Singh Tomar integrated 200 new mandis with the platform.

•On May 11, another 177 mandis were integrated. As of May 9, 150 commodities with produce collectively worth more than Rs. 1 lakh crore had been traded on the e-NAM platform, according to an official statement, although 236 mandis have actually participated in inter-mandi trade across 12 States.

•The user base remains at a nascent stage, with 1.66 crore farmers, 1.3 lakh traders and 71,911 commission agents registered on the platform. There are more than 13 crore farmers in India. However, an encouraging sign is the more than 1,000 FPOs which are registered on the platform, providing access to their members.