THE AGENDA CANNOT BUT BE MANACLED with the outcome. Even as the report of the Second National Commission on Labour takes its first apologetic steps, it says: "We are not called upon by our `Terms of Reference` to make any observation on the decision to globalise. So, we refrain from doing so. But we have been asked to study the impact of globalisation, inter alia, on industry, on labour, the `future labour market`, industrial relations, labour legislation, security and welfare of workers…" The past decade has been an auditory witness to cries of global competitiveness that have rent the air around employers’ organisations, and the ease with which that translate into derogation of rights, and protection of the workforce.

The `90s was dominated by a clamour for changing the dynamics of the law on  contract labour, night work for women, closure of industries, a relaxed policy of hire and fire, recognition and relevance of trade unions and by the old and tired antagonism to maternity benefits. The NCL has adopted these as priorities, softening its harshness with an expansiveness on unorganised labour - often carrying an implicit (sometimes not so subtle), and contrasted, vilification of organised labour.

Globalization has provided the NCL with a diversionary agenda, deflecting attention from other matters of moment that have arisen in the last 20 years.  So, despite an acknowledgement of the Bhopal gas disaster, the advertence to issues of compensation, restoration or the liability of multinational enterprises which venture in with hazardous substances or technology, is largely missing. Even the contentious Section 7-B(5) which was introduced into the Factories Act in 1987 - an amendment made in consequence of the Bhopal tragedy - and which inexplicably passes on liability for matters of risk and safety connected with plant and machines from one who "designs, manufactures, imports or supplies" the article on the basis of  "a written undertaking" to the entity to whom it is handed down, has not been examined.

The loss of jobs when the court closed polluting industries merits only a passing reference, and the spread of these cases is not acknowledged. The process, and prioritising, in deciding that the polluting industries in Delhi need to be closed down, the emergence of real     estate protection alongside the relegation of workers` voices and their concerns beyond the periphery of consideration do not get even a reference. The notion of risk and hazard which led the court to exile the industry, but where the court spared no thought for reduction of risk while yet asking workers to move with the industry occurs nowhere in the report. The demolition of the dwellings of the urban poor who constitute a vast proportion of the domestic workforce(which the report records is an increasing segment) is not within the realm of consideration in the report. In fact, the need for housing for the working classes, has escaped the NCL altogether. There is a platitudinous, and shrunken, repeat of housing for workers on plantation, and that is it.

It is no wonder, then, that the report of the NCL comes as a disappointment. The legislative changes recommended by the NCL are explained on the logic of rationalizing and consolidation of labour laws. The range of laws and the varying definitions of `workmen`, `wages`, `appropriate government` and `industry` have over the years been the bane of any student on the subject, and a simplification of the meanings attributed to these terms is worthy of a rousing welcome. The politically correct changeover from `workmen` to `worker` may merit a cheer. But the substantive changes predominantly move away from protecting the worker against exploitation and insecurity. The treatment of the law governing interstate migrant workers is illustrative of what ails the report.

The recommendation that the Interstate Migrant Workmen Act of 1979 be repealed is symptomatic of the approach adopted by the NCL. "This", the report reads, " is a well intended piece of legislation but the implementation has not been easy"(p.381), because of the involvement of two governments of the home state and the host state, and because "very often the workers do not happen to have been recruited by contractors and come to work at the destination state on the basis of information gathered from their relatives, friends, etc." It was suggested to the NCL that the Act should apply whether or not the workers had been recruited by contractors. But, the NCL, invoking the freedom of movement found in the Constitution, declined, and advocated a non-discriminatory approach in which it would "not be proper to provide legal protection over and above what is available to workers born or resident in the host state to those who have come from outside." "However," the NCL is quick to defensively aver, "these observations should not be construed to mean that we do not endorse the need to deal with the problem of migrant workers", and promised "adequate provisions" in the "general law".

Yet, the only provision made for interstate migrant workers contains only a general injunction against discrimination in matters of hours of work, leave, welfare measures and wages, and that the employer of unskilled or semi-skilled workers would be required to inform the home state and the receiving state by registered post of such employment.

Perplexity reigns where the segment of the report, which deals with unorganised labour, takes a contrary position on interstate migrant workers. "Workers are recruited ... through contractors or agents commonly known as `sardars`, generally for work outside the state whenever construction projects are available."(p.707) And adds: "This system lends itself to various abuses," setting out a litany of ills visited upon interstate workers. Yet, the recommendation of scrapping the ISMW Act and replacing it with a simple, innocuous provision constitutes the answer of the NCL. In what can only be a case of inadvertence, it recommends the ISMW Act be strictly implemented in the fishery sector alone, although how this will be done when the Act is repealed is a trifle tough to fathom.

The ISMW Act was one piece of law-making which worked its way out of the conundrums posed by a federal set-up where the executive authority of a state ends at the boundaries of the state. A person venturing beyond would ordinarily be beyond the jurisdiction of the state. The Inter State Migrant Workers  (ISMW)Act, placing the onus on the home state, as on the host state, to ensure that workers moving across state borders in search of gainful employment do not suffer exploitation, had expanded the capacity of the home state to follow the worker into the host state. In 1990, in Damodar Pandey v. State of Orissa  [(1990) 4 SCC 11], the Supreme Court had directed that, "to implement the provisions of the ISMW Act of 1979…. every state and union territory in India would be obliged to permit officers of Originating States of migrant labour for holding appropriate enquiries within the limits of the Recipient States for enforcement of statute and no Recipient State shall place any embargo or hindrance in such process." If any state or union territory wanted a modification of this direction, they were encouraged to approach the court.

There is nothing to indicate that any objections were raised. It is possible that the poor implementation of this law made protest redundant; but that can, at best, be mere conjecture. The suggestion that this arrangement is a matter that "involves centre-state relations and should, therefore, be taken up by the Labour Ministry in the appropriate forum" is, in this context, unsolicited, and provides a problem where none had existed.

In 1975, when ‘Towards Equality’, the report of the Committee on the Status of Women in India, entered the public domain, it must have been difficult to anticipate the impact it was to have on the polity. The women`s movement, which founded itself in the years immediately following ‘Towards Equality’, has captured public spaces, making women`s concerns impossible to ignore. That is reflected in the report of the NCL.

Apart from the shift in nomenclature to `worker` from `workmen`, and the provision of crèche being prescribed for every establishment governed by the law regardless of the number of women workers employed, the emphasis on organising women, and their representation, constitutes a significant aspect of the report. The issue of night work, which was central to the cogitation that industry sponsored in `90s, has, of course, found centrestage and, in addition to the ‘Towards Equality’ formula of "arrangement for transport and security" where women are required to work late, the NCL has added the conditions that there are at least five female workers working at the premises of the establishment, and that the work is not carried on beyond 10.30 p.m. except where permission to employ female workers is granted to the employer.

In the Small Enterprises (Employment Relations) Act 2002, the social security benefits includes: "In case of a female worker the maternity benefit, i.e. 12 weeks leave with wages up to two surviving children."

As the NCL sees it: "The population policy, particularly the two-child norm, has an intimate relationship with the maternity benefits and entitlements issue."(Vol. II, p. 92) The struggle not to penalise working women, and endanger their health by the denial of maternity relief, has been brushed aside in this re-ordered priority. The non-reference to other facets of maternity benefit, including that arduous work be not given to the woman four weeks prior to her entitlement to leave, and nursing breaks, for instance, may have resulted from the effort at simplification of laws; but their effect could be serious.

It is in its recommendation that sex workers be "considered as self-employed" (p.614) workers, that the NCL has been most unconventional. It is the fear of AIDS and the perception of sex workers as potential transmitters of the virus that informs this withdrawal from `prudery`. But the appellation of `sex work` has spurred the NCL to "recommend that sex workers should have the right to        register themselves as self-employed workers, and should be entitled to     benefits of all the schemes that we are recommending for self-employed workers, including welfare, medical benefits, etc."

A caution: The NCL has swept aside, without considering, the Public Liability    (Insurance) Act 1991, because it excludes workmen from its purview. The PLIA is a law of strict liability to provide immediate relief. The NCL has itself spoken of the prolix proceedings under the Workmen`s Compensation Act that       renders it useless as relief. Why then did it not ask whether the exclusion in the PLIA was sound?

Again, in taking a swipe at the Fatal Accidents Act, 1855 as antiquated and unnecessary since the WCA is sufficient unto the job, the NCL has failed to     notice that the FAA is invoked in situations beyond workplace injury and death. For instance, where a murder is committed and the state takes over the prosecution, the family of the murdered person may approach a court for compensation under the FAA. Repeal of the FAA would close this one avenue that is available to persons so affected.

Industry should be delighted at what the report holds. Where they asked for the moon, they have been given the sky, the moon and the stars. To cite an example, the demand that the government should have no role in the abolition of contract labour, as is provided in Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970, has been more than met. The NCL has recommended the division of functions in an establishment into `core` and `non-core`, with contract labour not to be employed in core functions. An expandable schedule of non-core functions which, at the outset has situated in it “Canteen, watch and ward and Cleaning" is a statement of the Contract Labour Act being turned on its head: from notification for abolition, the list of `non-core perennial functions` is set to expand.

The report of the NCL represents a missed opportunity. It is in its assessment that 96 of the labour force in India needs the support of social security nets, and that this is plainly not viable, on which its most significant statement is premised. Social security, the NCL holds, has to be work-linked. "This also means that the right to work would have to be viewed as a necessary concomitant of the right to social security." It seems it may need another extended exercise to reconcile the right to work with the right against exploitation.