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Social Security of Labour in the New Indian Economy

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Social Security of Labour in the New Indian Economy SOCIAL SECURITY OF LABOUR IN THE NEW INDIAN ECONOMY Thesis Submitted to the Cochin University of Science and Technology for the award of the degree of Doctor of Philosophy in the Faculty of Law By S. MINI Under the supervision of Dr. D. RAJEEV SCHOOL OF LEGAL STUDIES COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY COCHIN - 682022 2010 School of Legal Studies Cochin University of Science and Technology Kochi- 682 022, Kerala, India Dr. D. Rajeev Ph: 0484 2575465 Reader E mail: [email protected] 10th March,2010 This is to certify that the thesis entitled “Social Security of Labour in the New Indian Economy” submitted by Smt. Mini S., for the degree of Doctor of Philosophy under the Faculty of Law is the record of bona fide research carried out under my guidance and supervision in the School of Legal Studies, Cochin University of Science and Technology, Cochin – 22. This thesis or any part there of, has not been submitted elsewhere for any other degree. Dr. D. Rajeev (Supervising Guide) Declaration I declare that the thesis entitled “Social Security of Labour in the New Indian Economy” is the record of bonafide research carried out by me in the School of Legal Studies, Cochin University of Science and Technology, Cochin - 22. I further declare that this has not previously formed the basis of the award of any degree, diploma, associateship or other similar title of recognition. Cochin - 22 S. Mini 10th March,2010 Certified that the important research findings included in this thesis have been presented and discussed in a Research Seminar at the School of Legal Studies, Cochin University of Science and Technology on 3rd July, 2009. Counter Signed by Director School of Legal Studies, Cochin University of Science and Technology, Kochi 682 022 Signature of the Candidate Cochin – 22 10th March 2010 PREFACE Globalisation has many facets and its impact on labour is one of the most significant aspects. Though its influence is worldwide, it is much more significant in a transforming economy like India. The right of workers to social security is seen recognised under the Constitution of India and other welfare legislations. But, after adoption of the new economic policy of liberalisation and privatisation by the Government of India, the labour is exposed to new set of challenges. They are posed mainly due to economic restructuring affected in employment relationship, coupled with the increase in unprotected informal labour force. This study is an attempt to analyse the new challenges stemming up in employment relation, efficacy of the existing measures for social security of labour in the present economic condition and the suggestions for securing workers’ right to social security in the trade regime. The thesis consists of 9 chapters. The first chapter poses the challenges of globalisation on trade and labour standards with special reference to Indian labour and describes the relevance of the present study. The second chapter defines social security, its nature, meaning and content. The next chapter examines the influence of ILO in shaping social security as a right and its impact in India. The development of Indian labour jurisprudence with special reference to social security is examined in chapter 4. Chapter 5 concentrates on analysing the legislative framework of social security in India. The examination of new measures taken by other developed countries in tackling the problems created by globalisation is included as a comparative study in the next chapter. The position of labour in trade negotiations is very important in this context and this is done in chapter 7. Chapter 8 analyses the impact of globalisation on Indian labour with special reference to social security of labour. Conclusions and suggestions are summarised in the last chapter. For the successful completion of this study I had immense help from different persons. I am indebted to Dr. D. Rajeev, Former Director, School of Legal Studies, Cochin University of Science and Technology for giving proper guidance and constant inspiration to me in completing this work. Amidst his various academic and other works, Dr. V.S. Sebastian, Senior Lecturer, School of Legal Studies, Cochin University of Science and Technology had always been enthusiastic in properly channelizing the problematic areas of this study. I am indebted to Prof. P. Leelakrishnan, Prof. K.N. Chandrasekharan Pillai and Prof. N.S. Gopalakrishnan for giving valuable suggestions and encouragement. Prof. Mohan Gopal, Director, National Judicial Academy, Bhopal has been a constant encouragement during the completion of work. The active discussions I had with Dr. N.S. Soman, Dr. A.M. Varky and Dr. T.G. Agitha were of great benefit to me. I express my thanks to all of them. I am also placing on record the help extended by the research community and other students of School of Legal Studies, Cochin University of Science and Technology at various stages of my work. I express my sincere thanks for the cooperation extended to me by the library and office staff of School of Legal Studies, Cochin University of Science and Technology. Visits made to Indian Law Institute, Delhi, Centre for Development Studies, Trivandrum, Indian Society for International Law, Delhi, Jawaharlal Nehru University, Delhi, Parliament Legislative Library, Delhi, V.V. Giri Institute of Labour,Noida, High Court Library, Cochin and Library of School of Applied Economics, Cochin University of Science and Technology proved to be very helpful in locating the materials. I express my thanks to all librarians and other persons who helped me in these institutions. I gratefully acknowledge Mr. Binoop, for his help which resulted in getting this work neatly printed. I am thankful to all others who directly or indirectly helped me to complete this work. Finally, I express my thanks to my family for their sacrifices, without which this work would not have been a reality. Mini S. CONTENTS Chapter 1 INTRODUCTION..................................................................................01 - 38 1.1. Labour Welfare Laws: The Constitutional Framework and Philosophy 06 1.2. Labour Welfare and social security: Indian Scenario 09 1.3. Labour and Social Security: Some Basic Principles 15 1.4. Economic Background and Policy Reforms in India 20 1.5. Governmental Measures on Foreign Trade 24 1.6. Economic Reforms and Its Impact on Labour and Employment Security 26 1.7. International Trade and Labour Standards 35 1.8. Globalization and Problems of Indian Worker 36 Chapter 2 SOCIAL SECURITY: ORIGIN AND ITS CONCEPTUAL EVOLUTION ................................................................39 - 76 2.1. Social Security: Meaning and Content 39 2.2. Essential Characteristics 45 2.3. Genesis and Factors led to the Development: A Brief History 46 2.4. Modern Social Security Schemes 57 2.5. Emergence of Social Security as a Human Right 62 2.6. Conclusion 75 Chapter 3 SOCIAL SECURITY: INTERNATIONAL LABOUR ORGANIZATION AND INDIA ..............................................................77 - 107 3.1. ILO Conventions and Recommendations 79 3.2. Normative Framework of Social Security Evolved from ILO Documents 97 3.3. Protected Class of Persons 101 3.4. Minimum Content of Right to Social Security 103 3.5. ILO and India: An Appraisal 105 3.6. Conclusion 106 Chapter 4 SOCIAL SECURITY IN INDIA: HISTORICAL DEVELOPMENT AND LABOUR POLICY IN INDIA..............................108 - 136 4.1. Pre-constitutional Era and the Roots of Social Security 109 4.2. Analysis of Social Security in Independent India 118 4.3. Labour Policy, Social Security and Five Year Plans 126 4.4. Conclusion 135 Chapter 5 SOCIAL SECURITY IN INDIA: LEGAL AND CONSTITUTIONAL FRAMEWORK......................................................137 - 186 5.1. Right to Social security: The constitutional Framework 137 5.2. Directive Principle, Welfarism and Social Security vis-à-vis-Fundamental Rights: Judicial Approach 142 5.3. Legislative Measures for Social Security in India: Current Position 167 5.4. Social Security in Unorganized Sector 179 5.5. Conclusion 185 Chapter 6 SOCIAL SECURITY OF LABOUR: A COMPARATIVE STUDY.........187 - 216 6.1. Social Security in United States 188 6.2. Social Security in U.K. 201 6.3. Social Security in Sweden 207 6.4. Social Security in India 212 6.5. Conclusion 214 Chapter 7 WORKER’S RIGHTS AND WORLD TRADE LAW: AN APPRAISAL ......... 217 - 244 7.1 The Trade- Labour Nexus 218 7.2 WTO and Labour 220 7.3 Provisions in GATS Relating to Labour 227 7.4 ILO, Trade and Labour: An Outline 231 7.5 The Impact of CLS on the Existing Labour Rights Regime 239 7.6 ILO’s Decent Work Agenda 241 7.7 Conclusion 243 Chapter 8 SOCIAL SECURITY OF INDIAN LABOUR AND CHALLENGES OF GLOBALIZATION ...................................................245 - 284 8.1 Dynamics of Change and Their Economic Dimensions 246 8.2 Political Dimensions of Globalization: A Question of Governance 248 8.3 Welfare State and its Essential Characteristics 250 8.4 Social Protection and Development: Emerging Challenges and Doctrinal Contradictions 252 8.5 External Forces: Internal integration in Domestic Markets 254 8.6 Product Market versus Labour Market: Labour in world Economy 256 8.7 Social Protection and Security: Role of ILO in the Globalised Regime 259 8.8 Trade and Services 261 8.9 Impact of Globalization on Social Security of Indian Labour 262 8.10 The New Industrial Policy 263 8.11 The Recommendations of National Commission on Labour, 2002 274 8.12 Conclusion 284 Chapter 9 CONCLUSIONS AND SUGGESTION...................................................285
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