New Delhi: The implementation of a March 2018 Supreme Court verdict, highlighting the plight of construction workers, could have helped mitigate the migrant crisis that unfolded during the Covid-19 pandemic.
Issued by a bench of Justices M.B. Lokur and Deepak Gupta, both now retired, the order called for the central government to implement two 20-year-old laws that seek to augment the living conditions of construction workers and their families.
The laws are the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act 1996 (BOCW Act) and the Building and Other Construction Workers’ Welfare Cess Act 1996.
Among other things, the laws regulate the employment and service conditions of building and construction workers, and provide for safety, health and welfare measures.
They allow for the creation of a welfare fund and mandate 1 per cent cess on the cost of construction, to be paid by the employer or the principal owner of a project. They also call for the creation of a national database of workers and issuing them an identity card.
Labour ministry officers told ThePrint that the Supreme Court verdict was not implemented in view of the introduction of the proposed Occupational Safety Health and Working Condition Code (OSFWC) and the Social Security Code.
While the OSFWC annuls the BCOW, the Social Security Code repeals the cess Act, they said. The two codes are part of the government’s ongoing efforts to merge 40 different central labour laws and 100 state laws.
Both codes are yet to be passed. They were introduced in the Lok Sabha last year but subsequently referred to the standing committee on labour. While the committee submitted its report on OSFWC earlier this year, it has received an extension for the Social Security Code. Until the codes are notified, the two laws stay in place.
Instead of devising new solutions, experts say, the government can just fall back on the provisions of laws such as the BCOW and the cess Act to bolster the cause of its unorganised labour force. It is “baffling” that it hasn’t been done so far, they claim, adding that it may have helped stem the current spate of reverse migration.
A rap from the Supreme Court
In the 2018 order, accessed by ThePrint, the Supreme Court was unsparing in its observations regarding the central government’s conduct with regard to construction labourers, who, experts estimate, constitute 20 per cent of the unorganised sector.
The court noted that Rs 37,400 crore was collected under the cess Act fund, but only about Rs 9,500 crore had been utilised (the figure may have changed over the past two years). A CAG report, requisitioned by the Supreme Court, disclosed that the fund had been used by state governments to purchase laptops and washing machines. Less than 10 per cent of the money spent, the CAG report stated, was for the actual purpose of helping construction workers.
“You are making a joke out of it. Rs 30,000 crore is at stake. Who is suffering? These poor people. Is this the kind of sympathy and compassion which you are showing towards poor people,” the bench had remarked during one of the hearings. Construction workers not only build infrastructure, the court said, but also the nation.
“State apathy in a situation such as this virtually amounts to exploitation of the construction workers, and if the state turns exploitative, there is little hope for vulnerable sections of society,” it had said.
The court noted that only about 1.5 crore of 4 crore construction workers had been registered with the authorities concerned.
Subhash Bhatnagar of the National Campaign Committee for Central Legislation on Construction Labour, the petitioner before the Supreme Court, told ThePrint that the court had directed the central government to frame a composite scheme for all states to ensure uniformity in enforcement.
Several states, he said, had indicated a lack of understanding on how to spend the cess collected.
“The deadline to finalise the scheme was fixed as 30 September 2018. Between March, when the judgment was pronounced, and 30 September, multiple hearings took place before the scheme was approved in October,” said Bhatnagar.
According to Bhatnagar, on 30 October, a letter sent by the Union labour secretary asked all state chief secretaries to enforce the verdict. A fortnight later, he said, the chief secretaries received another letter from the central government, informing them about repealing of the two laws. States were told not to proceed with the top court’s verdict, he added.
“The government has not taken the implementation of the court order seriously. The second communique created confusion among the states on the implementation of the scheme,” said Bhatnagar.
“If the central government had allowed the states to go ahead, it would have minimised the reverse migration as witnessed today, as the scheme drawn out in court included creating a database of workers and issuing them an identity card with details of their employment,” Bhatnagar said.
‘Two laws comprehensive, must be implemented’
The BCOW and cess Acts extend social security benefits enumerated under government welfare schemes to the workers, conditional cash transfer to their school-going children, and healthcare facilities. They provide for a financial package for pregnant workers during delivery and Rs 1 lakh for treatment of critical illness in a labourer’s family.
The proposed Social Security Code allows for the notification of various schemes for the benefit of workers, such as the Employees’ Provident Fund (EPF), Employees’ Pension Scheme (EPS), and Employees’ Deposit-Linked Insurance (EDLI), benefits that currently apply to the organised sector.
The Occupational Safety, Health and Working Conditions Code, meanwhile, subsumes and replaces 13 labour laws relating to safety, health and working conditions. It seeks to regulate health and safety conditions of workers in establishments with 10 or more workers, and in all mines and docks. However, experts say the codes pale in comparison to their predecessor laws.
According to labour economist Professor Shyam Sundar of XLRI, Jamshedpur, the government should advise the states to look at the existing legal framework and try to implement that instead of looking for new solutions.
“These two exhaustive legislations should be enforced without any delay. I am baffled as a social scientist that the Centre is still not learning the lesson,” he said.
Various amendments proposed by states in labour laws are uncalled for, Sundar said. “That covers only 5 to 7 per cent of workers. The government should be writing to states to implement welfare schemes such as BCOW and the cess Act.”
According to Bhatnagar, construction labourers constitute around 20 per cent of the unorganised sector. Within the construction sector, he said, as many as 90 per cent are migrants.
The BOCW, he said, is a comprehensive legislation and deals with the safety of workers at a construction site. “The new codes framed do not include any provision on safety regulations,” he said.
Sundar said all that the central government needs to do is disburse the money already lying in the coffers of states. “The law requires states to constitute boards. The Centre must ask states to do so and distribute the money to those for whom it was collected. Can a government take pride in saying that we are implementing what is legislated?” he asked. “This is the profoundest question facing governance today.”