Law, Labour and Capitalism

A Study of Contract based Solid Waste Management workers of

Mumbai Municipal Corporation
Ashish Jha
A dissertation submitted in partial fulfillment of the requirements for the degree
of
Master of Arts in Globalization and abour
Center for abour Studies
School of Management and abour Studies
!ata "nstitute of Social Sciences
Mumbai
#$%&
ii
'eclaration
I, Ashish Jha, hereby declare that this dissertation entitled Law, Labour and Capitalism: A Study of
Contract based Solid Waste Manaement wor!ers of Mumbai Municipal Corporation" is the
outcome of my own study underta!en under the uidance of #r$ %arsha Ayyar, Assistant &rofessor,
Center for Labour Studies, School of Manaement and Labour Studies, 'ata Institute of Social
Sciences, Mumbai$ It has not pre(iously formed the basis for the award of any deree, diploma, or
certificate of this Institute or of any other institute or uni(ersity$ I ha(e duly ac!nowleded all the
sources used by me in the preparation of this dissertation$
March ), *+,- Ashish Jha

iii
Certificate
'his is to certify that the dissertation entitled Law, Labour and Capitalism: A Study of Contract
based Solid Waste Manaement wor!ers of Mumbai Municipal Corporation" is the record of the
oriinal wor! done by Ashish Jha under my uidance and super(ision$ 'he results of the research
presented in this dissertation.thesis ha(e not pre(iously formed the basis for the award of any
deree, diploma, or certificate of this Institute or any other institute or uni(ersity$

#r$ %arsha Ayyar
Assistant &rofessor
March ), *+,- Centre for Labour Studies
School of Manaement and Labour Studies
i(
/Why does a human body become deceased0
'he reason is that as lon as the human body is not free from sufferin, mind cannot be happy$
If a man lac!s enthusiasm, either his body or mind is in a deceased condition$$$$
1ow what saps the enthusiasm in man0
If there is no enthusiasm, life becomes drudery 2 a mere burden to be draed$ 1othin can be
achie(ed if there is no enthusiasm$
'he main reason for this lac! of enthusiasm on the part of a man is that an indi(idual loses the hope
of ettin an opportunity to ele(ate himself$
3opelessness leads to lac! of enthusiasm$
'he mind in such cases becomes deceased$$$$
When is enthusiasm created0
When one breaths in an atmosphere where one is sure of ettin the leitimate reward for one4s
labour, only then one feels enriched by enthusiasm and inspiration$5
6 7$8$ Ambed!ar: Writings And Speeches
(
!able of Contents
&reface (i
Ac!nowledement (ii
Abstract (iii
,$ Introduction ,
Methodoloy *
*$ Capitalism: A Journey 'hrouh Law 9
:riins of present leal Institutions -
9$ Labour in the Constitutional framewor! of India ;
-$ 1otes from the fields ,*
<$ Conclusion *9
8eferences *<
(i
(reface
'his wor! is an attempt to add to, structure and refine the learnin"s I ained in the due course of
my internship with =achara %ahatu! Shrami! Sanh, a trade union wor!in for the re(i(ification of
contractually employed solid waste manaement wor!ers of Mumbai Municipal Corporation,
durin the months of Auust up2to 1o(ember of the last year, *+,9$ 'his wor! was oriinally a case
study of the crusades launched by these wor!ers aainst the state, in order to ain formal
reconition as employees and not mere (olunteers of the Mumbai Municipal Corporations$ A lot
depends on this distinction for these people$ 'hus I felt a need to de(elop this case study further$ I
belie(e that in order for any future reader to better understand the conte>t of this fiht, there is a
need to brin forth to them details, both historical and contemporary, about the oriins of class
strules as shaped throuh the most important fabric of democratic nations: the rule of law$ 'he
wor! thus areates the e>itin literature on the historical oriins of law pro(idin succor to
capitalism durin its early staes and then principally centers around my personal assembled
learnin4s on how the Indian state has allowed for deliberate contortion of laws, especially labour
laws, in order to allow the capital to ain ascendancy on wor!in class of India$ 'he wor! in its
current form includes (aluable suestions of my faculty ad(isor, colleaues and field super(isors$ I
ratefully ac!nowlede their feedbac!$
Ashish Jha
(ii
Acknowledgement
I wish to e>press my deepest ratitude to my faculty ad(isor #r$ %arsha Ayyar for her uidance and
critical feedbac!s durin my internship and then durin the completion of this wor!$ I would li!e to
e>tend my sincere compliments to Mr$ Milind 8anade and Mr$ #eepa! 7halerao who let me
e>perience their wor! beyond the routines of trade union functions, and patiently corrected and
steered me into ainin a deeper understandin of their pursuit for ?ustice$
I ta!e this opportunity to than! my colleaue Mr$ Sha!ti 3iranyarabh, without his constant
presence and help in the field I would not ha(e been able to o about my wor! in any manner$
And of course I would li!e to than!s all the members of =achara %ahatu! Shrami! Sanh for their
constant lo(e and support rendered to me durin my wor!in days with them$ Without them
in(estin their time and enery into answerin my @uestions and sharin their !nowlede with me
this wor! wouldn"t ha(e e>isted in any form$ 'o them and their unwa(erin spirit I dedicate my
wor! and any !nowlede that stems from it$
(iii
Abstract
'he study is an attempt to understand the chanin nature of law, which has wea!ened the riht of
wor!ers (is2a2(is capital$ 'his dissertation is based on the attempts made by, primarily the
Municipal Corporation of Mumbai, and similar attempts made by corporations in 'hane, 1asi! and
=olhapur to pri(atiAe the statutory duty of solid waste manaement$ 'he study clearly brins out the
fact that consistent attempts are bein made by state to use law in order to deny these wor!ers their
rihts, with the sole aim to allow pri(ate players to ma!e hue profits out the wor! of waste
manaement$ B(idence is then presented on how this chane was brouht about by usin the
instrument of public interest litiation, and how the Supreme Court is wea!enin the leislati(e by
creatin law it sees fit$ 'he study hihlihts the fact that if people are made secondary to the needs
of economy and the unbridled need for pri(ate industrial rowth, the social harmony of our nation
would be ?eopardiAed and the present social structure will collapse$ 'he author ures the Judiciary
to therefore use our constitutional leal apparatus to defend the ideals of preamble, and not to
alienate the labourin masses$ Such apathy would only breed contempt for democracy$
,
")!*+',C!"+)
41o society can surely be flourishin and happy, of which the far reater part of the members are poor
and miserable$ It is but e@uity, besides, that they who feed, clothe and lode the whole body of the people
should ha(e such a share of the produce of their own labour as to be themsel(es tolerably well fed, clothed,
and loded$4 CSmith, A$ ,))DE
Smith !new and rasped before anyone else that e(ery society is composed of multitudes of
men belonin to different strata"s of its economic functionin$ It has ne(er been the landlords or
the traders who formed the preponderant sections$ 'he wor!in2class, comprisin of laborers were
the bac!bone of a capitalist society$ 3e belie(ed that without proper bulwar! aainst their
e>ploitation such an oraniAation of society would collapse$ 3ence the well2bein of wor!in2class
should be the chief aim of any economic policy$ 'his defines that the duty of the lawma!ers should
be to protect the waes first, because without it the material well2bein of the labourin classes
could ne(er be assured CMuller, Jerry F. *++9E$
Grom the abo(e premise emeres the @uestion important to this in@uiry$ 3a(e the laws or
their architects defended the labourin class0 Conse@uently this wor! beins by placin the oriins
of capitalism throuh the chanin contours of laws by relyin on multiple e>istin sources of
literature on the issue$ 'he chapter, Capitalism: A Journey throuh Law, elucidates how law as an
institutional framewor! as metamorphosed into a sentient of the capital class$ 7y classifyin it
under different themes it intends to pro(ide the reader with an opportunity to (isualiAe by
themsel(es how was this chane wrouht$ In a sense this literature re(iew shines liht upon the ae
old transformation of men and its institutions of ?ustice$ 'he study then ta!es a finer (iew of the
constitutional aims of the Indian state$ It then shapes the conte>t of Indian labour law in the post2
independence constitutional setup of India, and brins about the ob?ecti(es of our foundin fathers
with reards to the place of men in state and the role of ?udiciary in brinin about the de(elopment
of people, especially the wor!in class$ 1e>t comes the case studyH titled 1otes from the Gields,
which showcases this chane in action$ It del(es throuh the cases of contractually employed
wor!ers in solid waste manaement, who are part of the Mumbai municipal corporation chiefly, and
to a smaller e>tent to those of 'hane$ 'heir incessant @uest for basic riht is bein thwarted by the
state usin the same leal principals which were meant to ensconce them from the (aaries of
economic factors of production$ #ue e(idence both primary and secondary are presented to allow
the readers to ma!e ?udment by them2sel(es$
*
Methodology
'he material for this wor! is semi2empirical in nature$ 'hus the study is based on part
obser(ation, part research of e>istin literature and part research for e(idence$ 'he first part of the
study is a based solely on the e>istin literature of the day$ 'his is the section which can be
desinated as literature re(iew, thouh it"s a crude way to ascribe this character to the chapter, for
want of a more appropriate word$ 'he chapter attempts at brinin forward dialectically the oranic
rise of capitalism$ 'he sole attempt made here is to chronoloically follow the Mar>ian paradim of
historical materialism and understand how leal ?urisprudence of that day helped in securin the
rihts of men in(ol(ed in trade$ 'hus this section is more than a mere literature re(iew, it"s a bride
created to consummate the e(idence of the case study which follows later as not subsistin in
isolation but a result of a lon and arduous ?ourney$ It is then constrined in its breadth to that of
India constitution and the aspirations of bein a socialist democratic republic$
'he case study that follows subse@uently is based on part obser(ation, part inter(iews and
part research$ 'he obser(ations were made durin a period of four months while wor!in with the
wor!ers in(ol(ed in conser(ancy wor! as 4contract (olunteers4$ At the same time the opportunity to
attend multiple meetins of the union leaders with the municipal and labour commissioner, enriched
the understandin relatin to the functionin of state and its alterin (iews of duties towards its
citiAens$ 'he inter(iews were mostly with the leaders of the trade union and its committee members$
'heir (iews alon with the e>tensi(e leal material pro(ided by Mr$ #eepa! 7halerao form the
!ernel of this case study$ Gurther research both on2line and off2line was then done in order to
complete this wor! and brin it out in its present state$
1o (erbatim inter(iews or obser(ation ha(e been presented in this dissertation$ 'he
ob?ecti(e has been to present facts and allow the reader to discern the truth by piercin the (eil of
ersatA$ 'he underlyin (iew of the author miht seem anti2capital and anti2state$ 7ut that has not led
to a distortion of facts and (iews$
9
CA("!A"SM- A J+,*)./ !0*+,G0 AW
Will the comin future be Mar>ian or socialist is a @uestion without any concrete answer$ I
wish for it to be more collecti(e, based upon the ideals of e@uity, and still remain a structure where
men ha(e their freedom to choose$ 'his wishful thin!in is at the heart of an idea which miht
determine the destiny of men and would pro(ide a more compellin answer to the topical @uestion
of our present societyH the absolute disreard of the wor!in class$ 'he part of the possible solution
to this problem that interests me most is the role of leal institutions in determinin and brinin
about this transformation$ Law is amon the most cherished of democratic ideals$ Men ha(e always
belie(ed in the maical healin powers of law, a force which sees e(eryone as e@ual and satiates the
most basic of human demandsH Justice$ 7ut what role can law play in this ?ourney0 Would this role
be sinificant0 And whether it would remain true to its most definin featureH B@uity0 'hese are
@uestions which need to be del(ed into and for that it is important, that we trace the oriins of our
present day socio2leal superstructure$
Without any @uestion leal ideoloy has been an important core of our society$ If we must
de(elop a new order of leal ideas and institutions, we cannot do this in complete isolation or dis2
association from the e>istin attitudes and mechanisms of ?urisprudence$ 7ut can then a social
chane be brouht about throuh the e>istin system of law0 A central essence of law has always
been its ability to reform itself to meet the needs of society$ 'hus we find that by birth there are
certain uncertainties and fissures in the law, which pro(ide it with this fle>ibility$ In the present
times thouh this feature has caused more harm to the people and much ood to the capital$
Somehow the wea!est lin!s in the chains of ?udicial interpretation ha(e been men, a trained
section of society, who were i(en the en(iable tas! of ta!in it forward$ 'his allowed a risin
roup of society, the capitalist, to ta!e ad(antae of these features and lend law a fa(orable shape$ A
uerrilla warfare was instituted aainst the ?udicial principles to ma!e sure that the capital ne(er
losses$ In such a scenario how can the wor!in2class pre(ent this dilution of constitutional ideals
throuh ?udments of courts0 'he answer to this is (ery simpleH &olitical &ower$ When Ambed!ar
disrearded the Iandhian demand for no special political powers to the untouchables, on the
rounds that it would di(ide the 3indu society and ma!e nation wea!, he understood the (alue of it$
Gor without political power the powerful would continue to rule the wea!, as the economic benefits
of such sla(ery are too reat for the former to sacrifice on its own behalf$ 3ence a wor!in2class
solidarity to achie(e reater political2power is the only measure which can pre(ent their total
sub?uation$ 'he @uestion that arises now isH ha(e the courts become powerless to effectuate this
social chane0 Can they not respond to the needs of protectin the life and liberty of all citiAens0 I
do not !now an answer to this$ 7ut I do !now that we cannot solely base our beliefs on the courts
statutory duty to protect the citiAens$ Jntil that wor!in2class solidarity is achie(ed to ain the
-
political2power and balance the leal structure, law is our most important ally in this battle aainst
capital$ Wor!in2class cannot base its battle totally on militancy$ It has to ma!e sure that it !eeps the
?udiciary in line with the ideals of our preamble, of ?ustice: social, economic and political$
3istory is the biest teacher and we need to learn from it$ 'hus in this part of my essay I
would try to brin forth the ?ourney of the dominance of Capital o(er the wor!in class in the
present world throuh the prism of Law$ I belie(e that this would prepare us in construin how the
capital would respond at times of crisis to ain an upper hand and how we ha(e failed in past to
pre(ent their ascendancy to power$
+rigins of (resent legal "nstitutions-
'he present structure of leal systems traces its oriins bac! to si> ma?or thouhts of
?urisprudence$ 'hey can be classified as follows:
,$ Roman Law- 'he main feature of roman laws ha(e been creation of leal relationships
which were needed to further the needs of a rowin empire$ 'hey were primarily desined
to reconcile the bureonin commerce of a nation and financial dependency it forced upon
its neihborin states and people C7uc!land, W$ ,K9KE$ 'hese features of 8oman law ha(e
been re(i(ed time and aain to ?ustify and defend the imperial and military rise of ma?or
powers such as the 7ritish !indom and the American state$ :ne of the important features of
the 8oman law was the dis?ointin of the &ublic and &ri(ate law, similar demarcations
persist in almost all democratic countries e(en today$ 'he public laws were meant to
safeuard the state and its acti(ities, and the pri(ate law was meant to reulate the sphere of
indi(idual disputes and interests$ Such delimitation is important to pre(ent intrusion of state
in matters of reliious beliefs of its people and thus promote secularism$ 7ut most
importantly property and issues related were addressed under the pri(ate law CMc1air and
7uc!land$ ,K<*E$ 'he debilitatin effects of this was clearly felt when at the time of
independence India a(e its citiAens the riht to property but couldn4t enforce effecti(e land
redistribution to unra(el the feudal system$ 'he matter ot challened aain and aain in
Supreme Court$ It was not until the Supreme Court decided to remo(e this as a fundamental
riht and a(e it the status of a leal riht, did the matter resol(e$ 'houh by that time the
capitalists had structured their holdins in manner re@uisite to e(ade reulations$ 3ence till
today the landless classes in our society continue to remain landless$
*$ Feudal Law- As it would suest these laws were desined to facilitate the dominance of
land ownin classes o(er others$ It shaped the nature of feudal ties between owner and tiller$
'hese laws formed the basis of property rihts and also formed the foundation of rihts
which meant that in most of the western democratic societies for a lon periodH only those
with property had the riht to adult suffrae, thus political2power ot concentrated in the
<
hands of capitalist C'iar, M$ ,K),E$ In the case of India the feudal law transformed the
(illae le(el socio2leal relationships to an e>treme deree, by riorous application of caste
distinctions$ 3ence the #alit community, remained landless tillers, whereas the 7rahmin and
=shatriya communities became ma?or land holders$ 'he loic was reinforced throuh the
period of 7ritish colonialism by creation of Aamindari system, intended only to enhance
imperial ta> re(enues CJaffrelot, Christophe$ *+++E$ 'he Aamindars were not the owners of
land under 7ritish rule, but post2independence they claimed that riht by leally claimin to
be tillers of the land$
9$ Canon Law- It was a critical component in the de(elopment of western model of leal
thouht$ It was used to e>ercise the miht of 8oman Catholic Church o(er commerce and
trade$ It ained sinificant power after the collapse of roman ci(iliAation and shaped the
destinies of christian nations$ &ost the collapse of empire it was necessary for churches to
maintain their economic security, hence trade was their focus for which they de(eloped
specialiAed codes and procedures of conduct includin for the first time the concept of
coercive penalties CCatechism of the Catholic Church$ ,K<,E$ 'he canon laws are especially
important because they were at the forefront durin the three ma?or wars: the Crusades$
'hey thus spread their reach towards the eastern world and at the same time hea(ily
influenced the de(elopment of Buropean leal structure$ 'he chief aim of canon law was to
ma!e sure that 8oman Catholic Church remained the reatest force in operation of society
and thus would be the only authority to define the socio2leal relationships amon men$ 'his
structure always placed the church on top$ :f fundamental importance amon features of
canon law is the creation of concept of /common good$5 In the church law codes it appears
as followin: "...an ordinance of reason for the common good, promulgated by the one who
is in charge of the community CCatechism of the Catholic Church$ ,K)DE." 'his concept has
been steadily used by the Indian state and states across the worlds to ta!e away resources of
tribals and public, and sell them to the capitalists$ It has been the chief method to
disenfranchise the people of their democratic rihts to benefit the rulin class$
-$ Royal Law: 'hese were the creation of early rulers$ 'he monarchs reularly had tense
relationships with the aristocracy, as the noble men were their chief source of re(enues for
furtherin their empire, but the lords of manor hated ta>ation$ At the same time the
monarchs needed their support to stay in power because it was the noble men"s serfs who
formed the ma?or part of !in"s armies$ 'he decline of feudal system was associated with the
rise of monarchies$ 'he !ins formed alliances with aristocracy which was now ready to
support the cause of empire, if they were ranted leal concessions in return C'iar, Michael
B$ ,K))E$ In the present world it can easily be witnessed throuh the functionin of
D
Commerce based oraniAations who reularly lobby and ad(ice the state on how best to
o(ern$ 'hey lobby for cuttin of waes, rela>ation of labour laws, ta> benefits and
subsidies$ In case the state refuses to comply they simply threaten that the economy of
nation would suffer$ With the de(elopment of comple> financial structures, now more than
e(er, they are easily able to shift capital to the ne>t best destination for profiteerin$ 'hus
parliament becomes nothin but a wea! representation of peoples will$ Aain such structures
of power function because the laws protect the swindlin leader once in power$ It protects
the lobbyist based on the rihts of freedom of speech$ It i(es no mechanism for people to
respond$ It stifles democracy for the wor!in2class by callin stri!es obtuse and anarchist$
'he law demands re(erence because it"s the basis on which our constitution functions, but
for the wor!in2class it"s ?ust a chimerical pursuit of ?ustice$
<$ Law Merchants: 'hese were leal structures fored by merchants$ 'hey had o(er aes
(iorously demanded a special set of rules to reulate and o(ern their practices and trade$
Initially these started as certain concessions ranted to them durin trade fairs in towns and
(illaes, so that they could perform their trade smoothly$ Slowly it turned into a permanent
feature of law which a(e them a hiher and preferential treatment o(er those of wor!in2
class people in society$ :(er time thouh, the commerce which was restricted amon the
traders of a small eoraphy rew and di(ersified$ 'his brouht about the creation of first
transnational tradin firms usually shippin firms in the beinnin$ 7ut with this shift also
came forward comple>ities of international trade, and thus the leal ideoloy needed a reat
shift to meet these demands$ 'he results of this can be seen in the creation of uilds of one
reion resistin the traders from other reions$ 7ut this protecti(e shield was not (ery
effecti(e in the lon run$ So were born the ideas of trade areements CLe(y, Madeleine 8$
,K))E$ In today"s world these are the most importance set of rules o(ernin the functionin
of a social order based purely on economic structure$ 7ut in case of disputes it"s not the
people who decide the issue, it"s done throuh oraniAations such as W': CWorld 'rade
:raniAationE$ It ta!es away all the rihts of people and (ests within itself the riht to
arbitrate$ 'he definition of ?ustice is determined by those who lead these oraniAations$
'hese inad(ertently are the capitalists$ 3ere too the wor!in2class lost and thus has its fate
decided by capital$
D$ Natural Law: 'his is the cle(erest of them all$ 'he natural law is based upon the notion that
the laws of true ?ustice are immanent. It states that morality is the basis for ?ustice and that
this morality can be disco(ered C'iar, Michael$ ,K))E$ 7ut what it fails to address is that
morality is also a social construct$ It is created by men and thus depends on the e>itin
definitions of socio2leal relationship amon themsel(es to attain a nature of its own$ 'he
)
shape of natural law is thus not shape inherent but shape administered$ It thus allowed the
capital ownin classes to con(ince the society that freedom of indi(idual to do as he or she
pleases without any restrictions from state, is true liberty$ 'he rulin classes (ehemently
associated the ideals of democracy and free2trade as the most suited for the betterment of
people$ 3ence forth, capitalism enshrined the (irtues of liberalism and ?ustice$ :nly today
has the Wor!in2class realiAed the distance between truth and reality$
'hese si> broad classifications of the flow of leal thin!in showcase the de(elopment of patterns
of power$ 'he power relationships were not always unified and coherent, but they did the important
tas! of delineatin the classes and also made sure that o(ertime the riht to ?ude, arbitrate, enact
and interpret laws remained with the capitalists$ 'he essence of this transformation can be e>plained
beautifully throuh the followin words of =arl Mar>:
4My in@uiry led me to the conclusion that neither leal relations nor political forms could be
comprehended whether by themsel(es or on the basis of a so2called eneral de(elopment of the human mind,
but that on the contrary they oriinate in the material conditions of life, the totality of which 3eel, embraces
within the term /ci(il society5H that the anatomy of this ci(il society, howe(er, has to be souht in political
economy$ 'he eneral conclusion at which I arri(ed and which, once reached, became the uidin principle
of my studies can be summarised as follows$
In the social production of their e>istence, men ine(itably enter into definite relations, which are independent
of their will, namely relations of production appropriate to a i(en stae in the de(elopment of their material
forces of production$ 'he totality of these relations of production constitutes the economic structure of
society, the real foundation, on which arises a leal and political superstructure and to which correspond
definite forms of social consciousness$ 'he mode of production of material life conditions the eneral
process of social, political and intellectual life$ It is not the consciousness of men that determines their
e>istence, but their social e>istence that determines their consciousness$ At a certain stae of de(elopment,
the material producti(e forces of society come into conflict with the e>istin relations of production or L this
merely e>presses the same thin in leal terms L with the property relations within the framewor! of which
they ha(e operated hitherto$4 CMar>, =arl$ ,;<KE
'hus the rulin classes ha(e been able to reularly consolidate their powers by slowly ta!in
o(er the means of production from the wor!in2class$ And throuh subtle alternations in the leal
definitions and scope of property, ownership and indi(idual libertyH they were able to chane the
status of social relationships$ 3ence we obser(e that lands which were under pri(ate ownership in
the feudal era later transformed themsel(es into a contractual form of possession, which further
enabled an easy transference of land pri(ately amon men with capital$ At the same time the land
which beloned to the public at lare were encircledH this resulted in massi(e miration of wor!in2
class towards the cities in order to wor! for waes$ 'his truly metamorphosed labor as commodity
in the capital intensi(e modern industrial world$ 'hus the wor!er had no say in decidin the socio2
leal nature of relationship he entered, a system a!in to bondage. 'his system a(e him the liberty
to choose to whom he could sell his labour but his barainin capacity and the nature of this
relationship was per2determined and e>ercised throuh law$ Jsually states codified system of
Labour Laws$
;
A1+,* ") !0. C+)S!"!,!"+)A 2*AM.W+*3 +2 ")'"A
If one desires to understand the framewor! of Indian constitutional setup with reard to the
position of labour, one would need to (iew it from twin anles$ Girstly it has to be loo!ed throuh
the form of constitution that has been adopted and secondly from the nature of constitution setup to
fulfill the ideals of e@uality and ?ustice$
'he position of labour under the Indian federal structure of o(ernance is the first mode to
analyse the abo(e posited arument$ It has to be accepted that a federal form of o(ernance would
indeed create issues with reard to reulation of any systemH labour is no e>ception to this rule$ 'his
matter was hihlihted by #r$ 7himrao Ambed!ar durin the draftin of the constitution$ 7ut then
he arued further that the prime needs of any wor!in2class with reard to labour reulations
comprise of two prime moti(esH firstly the nation as a whole needs to ha(e a desinated and
common standard of labour laws which are enforced with e@ual rior throuhout the boundaries of
the stateH and secondly that the nation as a whole fulfills its commitment to better these laws and
brin them in line with Internationally realiAed standards of wor!er reulation and protection$ In
order to sol(e this dilemma the nation adopted a concept of concurrent list$ 'he bifurcation of
power is an important element relatin to a federal form of our constitution$ 3ere concurrent list
specifies matters which are under the ?urisdiction of both the center and state but ma!es sure that in
case of di(erence and issues, the central model and rules would apply$ 'his has been of reat
importance to the wor!in2class mo(ement of India$ As it allowed wor!in2class to collaborate on
issues nationally and wor! towards achie(in a common standard of treatment for the labour
CAmbed!ar, 7himrao, ,K-;E$
'he ne>t @uestion that needs answerin is what should be the nature of Indian constitution0
'he @uestion that this raises is, should the constitution limit itself and be only political in its nature0
:r should the constitution o ahead in its ambition and address the social and economic structures
of the society$ 'his is important in the Indian conte>t as the hihly caste based society of India was
operational with a (iew of e>tractin economic ains and sub?uatin the wor!in2class, who were
inherently of lower castes$ When a constitution limits itself to address only the political needs of a
nation its wor! comprises only of partition of powers amon the B>ecuti(e, Judicial and Leislati(e
authority$ 7ut when a constitution is created with the need to address the socio2economic
imbalances of society, it establishes a distinct breath in which the economic apparatus of the state
would operate$ 'his is nothin but a structurin of the ownership of the resources of the nations,
and the reulation of the apparatus of production$ It also embar!s on a (ision of how the nation
needs to mo(e ahead to remo(e the ini@uities and pro(ide for redistribution of wealth of the nation
amon its people$
K
'here are many who hold the (iew that the constitutional declaration of an economic
structure is inherently an encroachment on the idea of liberty of the indi(idual$ 'hey complain that
such arranements allow the state to ha(e per(asi(e control o(er the men, by limitin their ability to
affect their labour as they desire$ 'his inherently destroys the political freedom of men and
undermines the foundation of democratic functionin$ It"s an important @uestion to be answered and
understood by the wor!in2class$ 3ere one needs to first discern the primary foundations of a true
political democratic system$ 'his system is based on the followin propositions$
Girstly, the indi(idual is not the beinnin of the democratic system but the end of it$
Secondly, e(ery human, whether a citiAen of a nation or not, has certain inalienable rihts and the
best way to pro(ide sanctity to these rihts is their constitutional reconition and protection$
'hirdly, no indi(idual can be ac@uiesced to relin@uish their constitutionally i(en rihts in order to
access any pri(ilee due to them and finally, the state under no circumstance should create a
situation where any pri(ate indi(idual has the power to administer others$ In order to achie(e these
oals India chooses to pro(ide for multitude of protection to its people under (arious fundamental
rihts and directi(e principles of state policy CAmbed!ar, 7himrao ,K-;E$ 7ut it does not ta!e a
ma?or effort for anyone to realiAe that post the massi(e economic liberaliAation of India in ,KK,, the
last two ideals of political democracy ha(e been encroached completely when pri(ate oraniAations
were i(en the riht to reulate labour$ In the present Indian system of capital based ideals of
rowth many wor!in2class people ha(e relin@uished their constitutionally protected leal rihts
?ust to ha(e ainful employment$ Such sub?ection to pri(ate authority creates a system of bondae
labour$
If one were to as! those without any employment what does their liberty mean to them, one
would realiAe that it is of no (alue$ Any man or women, when i(en an opportunity to earn any
wae in return for total sub?ection to the whims and authority of their master would do so
immediately$ Whether it is the freedom of speech or the riht to association, all is sold to pre(ent
star(ation of self or children$ 'he pain of bein on the doles of an apathetic society is e(en worse$
Jnder such e>treme pressures of e>istential nature how can his choice be anythin else0 3ow can
men so constrained be e>pected to stand for their rihts0 3ow can such a society e(er be
democratic0 'hus time and aain men surrender to merely e>ist$ In the words of Ieore :rwell:
4'his business of petty incon(enience and indinity, of bein !ept waitin about, of ha(in to do
e(erythin at other people"s con(enience, is inherent in wor!in2class life$ A thousand influences constantly
press a wor!in man down into a passi(e role$ 3e does not act, he is acted upon$ 3e feels himself the sla(e
of mysterious authority and has a firm con(iction that they" will ne(er allow him to do this, that, and the
other$ :nce when I was hop2pic!in I as!ed the sweated pic!ers Cthey earn somethin under si>pence an
hourE why they did not form a union$ I was told immediately that they" would ne(er allow it$ Who were
they"0 I as!ed$ 1obody seemed to !now, but e(idently they" were omnipotent$4 C:rwell, Ieore$ ,K9)E
,+
'hus it has been and is beyond dispute that the constitution should establish the nature of economic
e>ercise to be underta!en by the nation$ 1ow the only @uestion that needs to be deliberated upon is
how this can be achie(ed$ Gor sure capitalism brins forth to the fore the idea of liberty, howe(er we
cannot inore its debilitatin impact on the wor!in2class$ Communism offers a radical solution$ It
annihilates the distinction between the lord"s temporal and laborin men$ Communism allows for
the wor!ers to control the means of production and thereby control their own fate$ It allows for
radical redistribution of political power and wealth$ Met, in return for all this it ta!es away the riht
of indi(idual as a free man, liberty is thus sacrificed at the altar of e@uity$ Is it a ?ust barter0 3ere
aain I side with the ideals of Ambed!ar, who maintained that labour needs both liberty and e@uity$
:ne should not be forced to sacrifice one inalienable riht with another$ A man without liberty is a
man who doesn4t dream$ 'hus the best arranement to i(e both liberty and e@uity is the path of
socialism$ And it is important that this is constitutionally uaranteed and protected, for in a
democracy today we can ha(e today a left state and tomorrow a riht state, and the whims of
masses miht become a tyranny of ma?ority$ As we ha(e finally fathomed, the ma?ority is capital
and it is steadily destroyin all principles of parity for profits$ A reat e>ample of the abo(e
mentioned distortion of principles for profit can be aued throuh the followin$
'he constitution of India under Article ,- states that: /The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory of India. At
the (ery outset this seems a reat commitment on the part of state towards it citiAens$ It represents
the ideals of the foundin fathers which ha(e been i(en power throuh the institution of leal
safeuard$ 'he e>pression !equality before law! in the abo(e article has been borrowed from the
common law traditions of 7ritain$ It is reconition that all people within the realm of our national
territory are e@ual$ 'his is nothin but a declaration that no indi(idual can demand or command any
special pri(ilee$ 'hereby e(ery man, women and child, whate(er be his or her social, economic or
political status is sub?ect within the pur(iew of our courts$ 'he second part of the article, "the equal
protection of laws, secures to e(ery man, women and child within the national territorial reion of
India access and en?oyment of all rihts ranted to them without any fear or fa(or$ 'his part is
inspired from the American Constitution, where the pro(ision has been made under the fourteenth
amendment$
Importantly thouh this riht is not limited to the citiAenry of our country alone$ In the
matter of #hiran$it %al #howdhary versus the &nion of India, the ?urisprudence has reconiAed that
a corporation can also be classified as ?uristic person$ 3ence corporations can also demand the
entitlement of this riht and its benefits$ An ob(ious @uestion that miht come to one"s mind after
this is what benefits does it pro(ide to the firm0 At the most basic le(el it creates a situation where
the state is draed to court by pri(ate industry when it reser(es certain section of economy under
,,
the control of public utilities, especially in cases of oil, minin and enery$ 'his is a sinificant tool
used by the pri(ate industry in as!in for parity with the state firms in this sector$ 'hus the socialist
principle in our preamble is reduced to mere sensory modality$
,*
)+!.S 2*+M !0. 2".'- !0. SA2A" 3AMGA*s +2 M,M1A"4 !0A). A)'
3+0A(,*
'his section of my wor! would illustrate to the reader how our nation, in particular the
bureaucracy has deformed and defiled the labour laws pro(ided for the betterment of Indian
wor!in2class$ In continuity with the underlyin theme of the dissertation it would brin about the
twist and technicalities used to brin down the functional part of (arious laws in order to emasculate
the constitutionally protected rihts of the laborin class, and strenthen the capitalists in(ol(ed in
profitin from public contracts$ Gor this part of my dissertation I draw upon my e>periences and
learnin4s while wor!in as an intern with =achra %ahatu! Shrami! Sanh C=%SSE$ =%SS is an
oraniAation which has been wor!in with the contract labor employed by the municipal
corporations of Mumbai and 'hane to a ma?or e>tent, and partly with the similarly employed
wor!ers in 1asi!, =olhapur and Solapur$ 'he oraniAation was founded by Mr$ Milind 8anade, who
while on his way to wor! one day saw these wor!ers ha(in their food on top of a truc! carryin
waste to #eonar dumpin rounds$ Grom that day twenty years to the present, the union has
achie(ed some reat (ictories for the people but presently their fiht to et ?ustice for the remainin
sinificant ma?ority employed in this wor! seems an uphill and on a personal note, losin battle$ 7ut
the spirit of the wor!ers and their leaders to fiht till the end is e>actly the way to o$ 'hey belie(e
that if they are oin down, they would not merely surrender and (anish into obli(ion, but i(e their
all$ 'heir faith in democratic institutions e(en now is a mystery to me$
'hus on the suestion of Mr$ Milind 8anade I started my wor! with their Safai wor!ers
employed as contract wor!ers with 7rihan Mumbai Municipal Corporation C7MCE$ 'he first tas!
i(en to me was to help oranise wor!ers to stae protests in order to push the corporation to
pro(ide them with a clean place to sit and eat their lunch at$ At the same time we wanted the
corporation to allow them to ta!e their mandatory lunch brea!s, which the contractors of
corporation had been pre(entin the wor!ers from ta!in till then$ In this reard a protest was
launched and complaints were made with the 7MC commissioner around the first wee! of auust
*+,9$ 'he commissioner replied that there was no need to pro(ide these wor!ers with separate
eatin sheds and other facilities$ 'hey must instead use the facilities pro(ided at the respecti(e ward
offices of 7MC$
'his was a farcical order passed by the commissioner$ 'he truth is that these safai wor!ers
ha(e ne(er been allowed to enter the 7MC ward office washrooms let alone the canteens$ 7ut we
decided that it was time to ta!e action$ 3ence from the mornin of Monday twelfth of Auust we
decided to meet the wor!ers at their loadin stations before they left for wor!, at fi(e in the
mornins$ We told them about our plans of enterin respecti(e ward office canteens and also as!ed
them to ta!e their mandatory lea(e as i(en in the official corporation rule boo! o(ernin their
,9
employment, from ,, to ,* noon$ We started the campain from Andheri and then too! it to
=andi(ali and 7andra$ 'he authorities were totally indifferent to our pleas and hence we resorted to
sit2ins riht outside their ward office buildins$ Later police was called and we were warned$
B(entually thouh our persistence paid off and we came throuh$ In all the three wards we ha(e
manaed to et the wor!ers to o and eat at the canteen and use other facilities$ 'his was a small
(ictory but still a step forward$ Sadly the fact that it too! se(en years to et e(en this, spea!s badly
of our o(ernance system$ 'he important thin here is what does the law say about this riht0
Accordin to the ob?ect and reason of the factories act C,K-;E, the chief aim of this law is to
ensure that the all underta!ins doin the wor! as defined under this law be compelled to ensure the
wor!ers are pro(ided ade@uate safety at the place of their occupation$ 'heir health is not
compromised due to the nature of their wor! especially in haAardous industries$ And the welfare of
the wor!ers is of paramount importance so as to ensure that his or her family en?oys commensurate
socio2economic benefits of their labor$ 'he chapter fi(e of this act deals with the welfare measures
to be pro(ided to these wor!ers at their place of wor!$ 3ere under section forty2fi(e, is the concept
of Canteens$ It clearly states that e(ery employer employin more than *<+ wor!ers is decreed by
the o(ernment to establish a canteen for the benefit of its wor!ers$ Gurther under section forty2
se(en of the (ery act the state instructs the employer to pro(ide rest2rooms and shelters for its
employees if their number is reater than or e@ual to ,<+$ So here we ha(e an act passed in nineteen
forty2eiht directin the 7MC to pro(ide these facilities$ So the @uestion is why would it not do so0
Why the se(en year itch0
'he answer to this is (ery simple in the operatin lanuae of 7MC, it does not consider
these employees, its own$ It has thrown away the concept of bein the principle employer out of the
window here and hence renees on it duty$ 'he @uestion is how can 7MC throw away this concept0
In a meetin we held with the 7MC commissioner post our aitationH he ac!nowleded that the
(arious wards offices where our wor!ers had protested did not ha(e the re@uired facilities$ 'hus it
was impossible for them to meet these demands and due to shortae of budet they cannot brin
about any short term relief$ 7ut when our tal!s entered the issue of denial of e@ual waes, the 7MC
chaned its stance and said cateorically that they would not reconiAe these wor!ers as wor!ers
because technically they are (olunteersN It further asserts that the contractors which employ these
people are actually non2o(ernmental oraniAations C1I:sE$ 'hey went ahead and stated that they
ha(e proformas whereby these so called contractors ha(e shown that they are in fact 1I:s which
pro(ide them with these (olunteers to help the corporation carry out the wor! of arbae collection
and disposal, in return for a specified fee$ 3ence, they say that they are under no obliation to
pro(ide them anythin, let alone the minimum waes these (olunteers are bein paid$ And thus the
whole concept of bein an employer is redundant$ Somehow I fail to understand how is that the
,-
system refuses to realiAe why would <+++ plus people declare themsel(es as (olunteers, wor! K
hours a day for 9D< days a year and for up2to two decades cleanin the arbae of a city0 3ere I am
reminded of the words of #r$ Ambed!ar about how people would trade all their rihts ?ust to earn
waes in order to sur(i(e$ Such absurd and touhened stands of o(ernment has created a situation
where the wor!in2classes ha(e no other option but to fore massi(e mobiliAation and protest,
which is dubbed in common parlance as wor!er2militancy$
'he @uestion that arises now is how did this system come to be0 What were the oriins of
this system0 And how is that in our conte>t capitalists ha(e benefited from this0 In order to
comprehend this we need to bein our ?ourney in nineteen2ninety si>$ 'he honorable supreme court
of India was in the midst of hearin aruments reardin petition number eiht hundred eihty2
eiht$ 'he case was a public interest litiation filed by a woman named Almitra 3 &atel$ 'he
petition was as!in the Supreme Court to loo! into the pathetic situation of solid waste manaement
practices followed by the municipal corporations across India$ 'he case was see!in directi(es from
the court to ma!e sure that the central o(ernment and the state o(ernments across the nation
impro(e their acts and follow the international standards of solid waste disposal$
Let us et to !now Ms$ &atel better$ 'he woman holds double bachelors from the Jni(ersity
of Mumbai in chemistry and botany$ Afterwards she went on to do her masters in ceramic
enineerin from the prestiious MI' in Jnited States of America$ Later with her colleaues in an
oraniAation wor!in for an art and cultural heritae trust, she decided to ta!e up the cause of solid
waste manaement practice in ma?or cities with population o(er hundred thousand$ A self2professed
e>pert in the field of solid waste manaement practices, she asserted in the Supreme Court that she
has personally (isited and studied more than one hundred and thirty2fi(e municipalities across India
Chttp:..www$almitrapatel$com.biodata$htmE$ It was based on her claims and the serious nature of
matter especially relatin to open dumpin rounds functionin in ma?or cities across the nation,
that the supreme court decided to constitute an e>pert panel of members with her as a specialised
e>pert in the committee, to ad(ice the supreme court on how best to deal with the situation of waste
collection and disposal in ma?or cities across India$ 'hus in nineteen2ninety eiht the e>pert
committee was constituted$ 'he committee submitted its report to the Supreme Court in nineteen2
ninety nine and finally based on the recommendations made by this roup the Supreme Court
created the Municipal Solid Waste CManaement and 3andlinE 8ules, *+++$ It is this directi(e of
the honorable court that forms the bac! bone of reulation of people and wor! in this sector$ 1ow,
let us e(aluate the recommendations and the conse@uences of this committees wor!$
An important part of recommendation was a note which was submitted to the Supreme
Court dated :ctober ,, nineteen2ninety nine$ 'his note came from the panel constituted and dealt
specifically as to the need of allowin pri(ate sector participation in solid waste manaement and
,<
all related ser(ices of urban local bodies across India$ I shall summariAe the ma?or
recommendations important for us below$
,$ 'he Municipal corporations need to shift their eneries and focus from directly pro(idin
ser(ices to the people of a city$ It instead needs to play the role of a facilitator and reulator$
Bspecially in the case of solid waste manaement were e>perience pro(es that pri(ate sector
would brin in more efficiency and financial benefits to the processes C8eport aainst Writ
&etition ;;;.KD: GorewordE$
*$ #espite the clear and repeated pleas made by the department for urban de(elopment, the
finance ministry and the plannin commission, the central o(ernment has not made it any
easier for pri(ate participation in the process of waste manaement$ :ne of the biest
hurdles is the Contract labour act, which ma!es operational constraints on pri(ate operators$
3ence this act needs to be re(isited first C8eport Aainst Writ &etition ;;;.KD: 1ote ,KKK,
pp$ ,E$
9$ 'he 7ombay hih court"s decision in a petition filed by an oraniAation C'his oraniAation is
none other than =%SSE, has prohibited the corporation from employment of contract labor
for the purposes of solid waste manaement under the pro(isions of the contract labor
reulation and abolishment act$ Such ?udments would defeat the entry of pri(ate sector
participation and hence need to be rescinded C8eport Aainst Writ &etition ;;;.KD: 1ote
,KKK, pp$ KE$
-$ In their assessment and dialoues with all corporations across India they ha(e come across
the fact the Contract Labor Act of nineteen2se(enty, forbids the enaement of contractual
labor for carryin out acti(ities which is already bein catered to by the corporation throuh
its own employees$ 'hus there is an urent need to amend the precedin law and thereby
e>pedite the entry of 1on2o(ernmental oraniAations into this ser(ice C8eport Aainst Writ
&etition ;;;.KD: 1ote ,KKK, pp$ -2<E$
<$ 'he Jrban local bodies should be authoriAed to restructure or reposition all their e>istin
human resource in a manner which promotes the efficient deli(ery of ser(ices$ 'his holds
especially true for areas which ha(e dense population or dwellins and mar!etplaces$
B(entually pri(ate players should be allowed to operate in reions where the urban body is
wor!in with its own manpower$ At least fifty2percent of all waste manaement wor!
should be pri(atiAed in order to encourae healthy ri(alry between the corporation wor!ers
and outside labourers C8eport Aainst Writ &etition ;;;.KD: pp$ -9E$
D$ In order to attract pri(ate in(estment in the field the state shall pro(ide all necessary and ?ust
incenti(es to the pri(ate player$ 'hese should include sustained periods of ta> e>emptions,
the ability to chare from household"s user fees for ser(ices pro(ided and ability to deduct
,D
hiher rates of man and material depreciation costs C8eport Aainst Writ &etition ;;;.KD:
pp$ 9<E$
)$ Another stri!in recommendation made by the commission was the need for amendment in
the &re(ention of Atrocities act aainst the scheduled caste and scheduled tribe community$
'hey committee in its entire report not once admitted to the fact the ma?ority of wor!ers
wor!in in the conser(ancy field were dalits$ Still it felt a need to direct the o(ernment to
amend the law to pre(ent its possible abuse$ 'his it belie(ed was necessary in order to i(e
the manain staff of the corporation the ability to operate boldly and et the re@uired tas!s
completed C8eport Aainst Writ &etition ;;;.KD: pp$ ,-E$
;$ In order to shore up the finances of municipal corporations the o(ernment should raise the
limits of property2ta> at reular inter(als$ At the same time the state should pro(ide e>tra
rants to the municipal corporations in order to pro(ide them with money to smoothly
tender the solid waste ser(ices to pri(ate parties$ At the same time the cost of user chares
bein ta!en by the ser(ice pro(iders should be lin!ed to the cost of li(in inde>$ 'hereby
ensurin limited and sustained profitability for the pri(ate sector and corporation C8eport
Aainst Writ &etition ;;;.KD: pp$ -<2-DE$
K$ Creation of dedicated manpower in the urban local body or throuh ser(ice contract to
pri(ate bodies who would ha(e the power to le(y and collect penalties from those doin
nuisance on streets$ 'he definition of nuisance thouh had not been pro(ided C8eport
Aainst Writ &etition ;;;.KD: pp$ -,E$
,+$ Across the nation it has been seen that people who dwell near city land2fills or dumpin
rounds ha(e been ta!in the matter to court and demandin actions aainst the operation of
such sites near the (icinity of their households$ Such litiation cause massi(e delay in
implementin the due procedures of new policies$ 3ence in such matters the corporations
should be re@uested to ma!e suitable chanes in the operations of such sites but any and all
mo(es for closure should be resisted C8eport Aainst Writ &etition ;;;.KD: pp$ K<E$
,,$ Accountability is lac!in amon the super(isory staff who ha(e been tas!ed with ma!in
sure that daily wor! is been done by the conser(ancy wor!ers$ 'his is due to two primary
reasons firstly due to a lac! of bac!in from senior staff and secondly due to the
apprehension resultin from trade unions who ha(e been oraniAin these wor!ers$ 'his
aspects needs to be loo!ed into in order to promote proper o(ersiht of wor! at the field
le(els C8eport Aainst Writ &etition ;;;.KD: pp$ -9E$
'hese were amon the important recommendations made by the panel to ma!e it easier for
municipalities to pro(ide better waste manaement ser(ices to the people and at the same time, if
we belie(e in their reports ob?ecti(e, pro(ide better income and wor!in conditions to the people
,)
employed in this sector$
1ow let us e(aluate what was the impact of the said recommendations once the honorable
Supreme Court turned it into a law and as!ed e(ery municipal corporation across the nation to
comply with it and send their compliance reports to the court in a matter of four months from the
date of application of the law on September twenty2fifth, *+++$ Ii(en below is the summary of the
chane this rule brouht and how capitalism triumphed from it$
,$ 'he first and foremost thin that happened was the sub(ersion of the parliamentary process
of leislation$ 'he fact that the Supreme Court made it mandatory for all municipalities to
file compliance reports made sure its rulin turned into a law$ 'his has ma?or implications
because in the constitution of the e>pert committee the most important elements of the
whole arranement were not in(ol(ed, namely the a(erae citiAen residin in ma?or cities
who is e>pected to pay e(er increasin user chares, people in the suburban areas where the
dumpin rounds are usually located, trade unions who ha(e been tryin hard to oraniAe
the informal labour and the people who ha(e been wor!in as sweepers, cleaners, ra2
pic!ers and others similarly employed$ 'his is clearly (isible from the nature of
recommendations made, such as alterin the essence of the contract labour law, re(iewin
the wor! of trade unions in(ol(ed in the protectin such wor!ers, and re(isin e(en the act
pre(entin the dinity and li(es of the dalit community, who form the bul! of people
employed in this area$ Such propositions would ha(e been out rihtly defeated in the
parliament$ 'hus the court decided what the parliament should ha(e and forced it upon the
people$ Such cases of e>tension of ?udicial powers are harmful in a democratic system$
*$ 'he municipal corporations ha(e indeed become facilitators$ In the city of Mumbai for the
fiscal year *+,-2*+,<, the total outlay to be spent on solid waste manaement is around :ne
thousand and si> hundred crores, more than se(enty percent of it oin to pri(ate contractors
who would bid for pro(idin these ser(ices$ At the same time it has been decided that the
licenses to operate would not be i(en annually but rather be i(en for fi(e year terms$
Gurther in order to ensure profitability for the pri(ate player and encourae in(estment a
uaranteed eiht percent profit is built into the contract areements$ 'he Chennai municipal
corporation pri(atiAed the whole wor! in year *+++ itself$ 'he contract was i(en to a firm
called C$B$I$A head@uartered in Sinapore$ 'he contract of the firm was e>tended in the
wa!e of the *++- tsunami in the city of Chennai for a period of another se(en years without
any chane or e(en a new tenderin process$ At the same time they were allowed to hi!e
user chares in order to facilitate e>pansion of their infrastructure$ Similar areements ha(e
been sined by municipalities across India allowin for thousands of crores of public money
to be i(en to the pri(ate industry C'he 3indu$ September ,;, *+,9E$
,;
9$ In the case of Mumbai municipal corporations the state has utiliAed the concept of
participation of 1I:s into the system for the benefit of pri(ate contractors$ 3ere the
corporation floated a tender for pri(atiAation of solid waste manaement ser(ices$ 'he
tender was then awarded on preferential basis to nearly one hundred and forty four 1I:s$
'hese 1I:s are nothin but labor suppliers for ma?or pri(ate firms whose only in(ol(ement
is that they pro(ide the custom2built (ehicles needed for the collection of waste$ 'heir lin!
with these 1I:s is as a contractor for pro(idin e@uipment and support ser(ices$ 'hey do
this in order to pre(ent wor!ers from demandin any rihts from them and at the same time
insulatin themsel(es from any litiation in future by declarin themsel(es as third party$
'hese so called 1I:s are run by conser(ancy wor!ers who had been wor!in here in
Mumbai for a lon time before the ad(ent of pri(ate participation$ 'hey now recruit people
from their (illaes and set themsel(es up as co2operati(es, enlistin the wor!ers as
(olunteers$ 'hese (olunteers are then paid honorarium and not waes by the 1I:s$ 'his set
up then allows for con(enient by2passin of the contract labor act$ 'he result is that the
7MC doesn4t need to pay these wor!ers minimum waes$ 'his also relie(es it from the tas!
of meetin any statutory re@uirements of the wor!ers$ 'his is the sinle most potent weapon
in the hands of 7MC and pri(ate contractor$
-$ Another tactic used by these 1I:s has been to pay these (olunteers their monthly
honorarium in cash and not throuh che@ues$ 'his is done to ma!e sure that the wor!er is
fore(er dependent on the whims and fancies of his employer or mu!adam, as they are
!nown$ At the same time those who are paid throuh che@ues ha(e another interestin twist$
Careful e(aluations of the sinin authorities on the che@ues re(eal that they !eep chanin
e(ery fi(e months$ 'his is done in order to ensure that no wor!er remains associated with
particular 1I:s for more than two hundred and forty days$ Why0 7ecause accordin to the
industrial standin orders act of nineteen forty si>, any contract labor employed
continuously for more than two hundred and forty days can as! for permanency of
employment$ 3ence e(en if the matter oes to court it can defeated on the technicalities of
law of continuity of ser(ice under a sinle employer$
<$ As has been mentioned repeatedly in the e>pert committee report that one of the ma?or
problem in completely re(ampin the system of waste disposal has been the contract labour
act$ 'his act has ne(er been amended in the parliament but the Supreme Court has made
sure that its interpretation !ept up with the economic needs of our capitalist system$ Let us
see how$
'he Contract Labour C8eulation and AbolitionE Act of nineteen2se(enty was passed with
the ob?ecti(e that the system of contractin wor! to outside wor!ers has led to abusi(e
,K
practices bein followed by the employers aainst these wor!ers$ 'hus there is need to
abolish this system in all areas where it is possible$ In sectors where it cannot be totally
abolished, the state would set standards for ma!in sure that appropriate waes was paid to
these wor!ers and they were also pro(ided access to other necessary amenities$ A ma?or
clause in this act is its section number ten$ Jnder this clause the state directs all
oraniAations that no wor! which is perennial in the nature of its operation can be i(en
under contract$ 'hus, the wor! of waste disposal which is inherently continual in nature
should ne(er be i(en under the contract system$ 7ut today one would notice that the
wor!ers employed in this sector are not as!in for abolishment of contract labor$ 'he reason
is Supreme Court of India$ In #ecember nineteen2ninety si>, the supreme court in its
?udment for the Indian Airports Bmployees Jnion (ersus Air India, proclaimed that
whene(er contract labor is abolished in any form of employment in an oraniAation, the
employees who had been employed on contractual labour by the firm would naturally be
absorbed by it and the oraniAation would thus become their principle employer$ 'his
landmar! ?udment was subse@uently i(en a coup de4 race, by the supreme court on
Auust two thousand2one$ 'his day the court deli(ered its (erdict on Steel Authority :f
India Ltd$ (ersus 1ational Jnion of Water Gront Bmployees$ 'he constitutional bench of the
court held the (iew that on abolishment of any form of employment as contract wor! in an
oraniAation the wor!ers cannot e>pect to be absorbed naturally CSupreme Court of India,
D++K2D+,+ of *++,E$ 'he riht to recruitment for the desinated wor! remained with the
employer at their discretion$ 'hus no union or wor!er fihts for abolishment of contract
labour, as doin so would mean a sure loss of employment for the concerned labourers$ 'he
result is, today the fiht is all about ettin the wor!ers the benefits a!in to those i(en to
similarly situate permanent wor!force of the employer$
Another specific blow that has been dealt to the conser(ancy wor!ers has been the
recommendation of plannin commission to the state to !eep solid waste manaement
outside the pur(iew of the act, unless the re@uired amendment in law is made C&lannin
Commission$ *++DE$ In this reard a notable step has been ta!e up by the state of Andhra
&radesh$ :n April ,,, two thousand2three the state of Andhra &radesh amended the contract
labor act with reards to its application in the state of Andhra &radesh$ Accordin to this new
law all the wor! directly or indirectly associated with the tas! of collection and disposal of
waste in the state would hence forth be rearded as a non2core acti(ity, and all non2core
acti(ities would remain outside the pur(iew and application of the contract labor act CCL8A
Andhra &radesh Amendment$ *++9E$
*+
D$ A ma?or hindrance to the unions that ha(e been fihtin for the reconition of these
(olunteers as wor!ers has been the leal system$ 'he demands placed by the courts in terms
of proofs re@uired for (erification is almost impossible to ha(e$ 'his problem was faced by
me when a similar situation presented itself at =%SS$ In a matter pendin before the court of
around two2thousand se(en hundred wor!ers wor!in as (olunteers for the 7MC, the court
demanded that we submit the followin documents$
aE 8eceipts of e(ery payment made annually by the wor!er to the union since the day
of his or her ?oinin the union$ In our case it meant ha(in to produce on an a(erae
nearly eiht years" worth of receipts of payments for e(ery union member$ As we
found out durin our dri(e to et these people reistered for this (erification process
before the court, that most of them did not ha(e the oriinal receipts$
bE &roof of payment bein recei(ed by wor!ers, throuh ban! accounts details or
crossed che@ues$ As mentioned before the 1I:s ne(er paid any wor!er waes
continually throuh che@ues$ Many were paid in cash$ And those who were paid
throuh che@ues ne(er had a continuity of employer as sinin authority$
cE &roof of residence in Mumbai$ In case of =%SS nearly se(enty percent of all the
wor!ers hail from the state of 'amilnadu$ 'hese wor!ers lac! any document in terms
of them bein a resident of Maharashtra$
dE Copies of attendance sheets$ 'his was done in order to ascertain that the 7MC
maintained a constant chec! on their wor!in schedules$ 'his would indicate that
they were super(ised and thereby their wor! was reulated$ 3ence they would fall
under the definitional ambit of contract wor!ers and not (olunteers$ In case of
Mumbai wor!ers a ood number of them had some or other form of attendance
sheets$ 7ut in the 'hane Municipal Corporation not a sinle wor!er was e(er
pro(ided with such a document$ 3ence the ability to pro(e super(ision of wor! is
non2e>istent for these wor!ers$
eE Copies of written and sined affida(its from all the wor!ers that they had ?oined
the union on their own behalf and were not induced to ?oin it under any false
promises$ At the same time they had indi(idually authoriAed the union and in
particular the union representati(es to file cases in the court on their behalf and
contest it$
'he benefits of as!in for such strinent details are to frustrate the wor!er and the unions$ Such
re@uirements are an easy way to lenthen the process of identification and thereby dis2illusion the
wor!er$ It helps in sub?uatin the wor!ers and wea!enin the strenth of collecti(e barainin
institutions$
*,
)$ A new problem that appears to ha(e come up is the coAyin up of union leaders with the
capitalists$ Currently most of the unions ha(e political parties controllin them$ 'he leaders
are men who intend to wield this power for personal benefits$ 'his creates discontent
amon the wor!ers who see their strenth bein used for reasons other than their welfare$
'his wea!ens the union mo(ement from within$ A similar matter appeared before me
durin my time in field$ 'he 'hane Municipal Corporation has been enaed in a
dispute with their Safai =amars o(er the issues of e@ual waes and permanency$ 'his
battle between the contract wor!ers and the municipal corporation has been oin on
since *++<$ 'he corporation employs nearly ele(en2hundred contract wor!ers for the ?ob of
waste collection$
'he issue too! a decisi(e turn when the Municipal MaAdoor Jnion decided to ta!e this
matter to court$ After three separate cases and fa(orable ?udments in all three of them from
the 7ombay hih court, the union approached the State Committee on 8eulation of
Contract labour$ 'he committee played a (ery safe mo(e$ Instead of followin the
recommendations of the principal secretary of urban de(elopment authority and the
assessment of the labor commissioner, who recommended an immediate abolishment of
contractual labour, the committee directed the municipal corporation to i(e the contract
labour all the benefits of a class four employee of state$ 'he committees" decision was still in
the fa(or of the wor!ers, but the corporation refused to act on the directi(e$ 'he matter too!
a sharp turn aain in *+,*, when the union filed another case in the hih court of contempt
of court and failure to follow statutory orders$ 3owe(er this time the union demanded that
only its senior most union members be i(en permanency, the new members can be i(en
permanency later$ At the same time the union areed that it was ready to do another
areement with the corporation by (irtue of which its remainin union members would not
as! for their riht to permanency for another si> years$ After these si> years the union would
follow the o(ernment"s directi(e on how to sort the issue$ 3a(in personally one throuh
the whole case and e(idence, to me it seemed that the union was ready to bac! trac! from an
absolute position of strenth, to submission$ When the wor!ers demanded a response from
their union leaders they ot none$ After years of bein in the union and fihtin for its cause
they couldn4t understand why their own leaders would choose such a defraudin preposition$
While all this was oin on, the 'hane Municipal Corporation ha(in seen this shift in tide in
a fa(orable direction issued a new tender for the city4s cleanin and collection of arbae
for a period of eiht years from *+,- onwards$ 'hey e(en manaed to seal the tender and
award the contract in a matter of wee!s$ A scheme most li!ely perpetrated with the support of
union leaders$
**
'he abo(e e>periences and facts clearly demonstrate how laws ha(e been continually shapedH and
?urisprudence reularly narrowed in its scope in order to facilitate the wea!enin of labor laws in
India$ 'he association of union power with capital is the biest threat of them all$ It saps the spirit
of wor!ers more than any other force$ 'he wor!in2class is thereby incessantly e(iscerated of its
(ior and has its fundamental rihts trampled$ All this is a moc!ery of democracy and ?ustice$
Capitalism has become an all2encompassin phantasm$ Gor the laborin class its strenth lies in
oraniAin and the will to fiht$
*9
C+)C,S"+)
I ha(e stated all that I wished to brin about already in (ery clears terms$ 7ut there is an
incident which I wish to reminisce here now$ I had to (isit the 7ombay hih court on multiple
occasions durin my internship$ My union"s secretary as!ed me if it would be possible to re@uest
Justice :a! to come to our institute and deli(er a lecture on the chanin trends of law and its
interpretation with respect to our constitutional aims$ I felt that it would be ood thin$ So I went to
the hih court hopin to ha(e an opportunity to meet Justice :a!$ 7ut his secretary told me I cannot
meet him$ 'hen I went an as!ed the court cler! and others, they too said I cannot meet him$ Gor an
outsider li!e me, a ?ude is totally in2accessible$ It is not e(en a @uestion of my case bein in his
court$ I ?ust wished to spea! to him and possibly et insihts into how is law chanin throuh
multiple interpretations on a daily basis across the nation$ After hearin no from all sides, I decided
I miht as! the ?ude himself$ So after the court ot ad?ourned for lunch I mo(ed ahead and as!ed
him if I could spea! to him now or maybe later in his office$ 3e as!ed me who I was$ I showed him
my collee Identity card$ 3e did not e(en blin! and said noH I couldn4t meet him$ 'hen he loo!ed at
his cler! and went away$ 3ardly a minute later si> policemen came and surrounded me as!in me
all sort of @uestions$ 'hey escorted me out of the court room to their one room @uestionin center,
the public loo!in as if a thief had been apprehended$ 'hey wrote all my rele(ant details in their
complaint boo!$ 'hen they said how stupid I was in tryin to meet the ?ude$ I felt as if I had as!ed
to meet the od$ 'he man who defines and shapes the (ery essence of what is ?ust, a public ser(ant,
is not accessible to public$ Somehow it felt that ?ust li!e ?ustice which the rihtful seldom recei(es,
the ?ude too is a mirae, to behold and foret$
So, I would end this wor! with an article I had written for a massi(e rally oraniAed by the
1ew 'rade Jnion Initiati(e in the month of #ecember$ We had ta!en this as our press release to no
less than thirteen bi and small news channels, all of them declined to co(er the e(ent or publish
this piece because they e>plicitly said that such e(ents arner them no (iewer2ships$ I hope to reach
least one more soul, the one readin this, by writin it here aain$ 3ere it isH
I am writing for those whose (oices and words ne(er ma!e it to the surface$ It is incessantly
drowned amon the ripples of artificial noises$ I write this not because I feel they need my help, I
write because I am one of them$ So we write this not as pleaders, we write this with anuish in our
hearts$
Who are we?
We are those who ha(e been cleanin your streets for decades, we are those who !eep your
home clean by plunin into the depths of rottin refuse, we are those who et up e(ery mornin to
ma!e sure that your water, electricity and machines functions without any interruption$ We are those
who li(e by the day, wee!s and months because we do not ha(e a future beyond that$ We are those
*-
who ha(e stopped dreamin of another renaissance$ We are those who die e(ery month in li(in our
tryst with destiny, as those releated to the bottom of human society$ We are e(erywhere but ha(e
become in(isible to all$ We are those who die, and are ne(er reclaimed as men$ We are the ninety2
nine percent, we are the wor!in2class$
Who are you?
Mou are men who commenced your ?ourney with us, but tric!ed us into belie(in that you
were one of us$ Mou are the men who are supposed to stand uard aainst the tyranny of
o(ernments and the apathy of masses$ Mou are the conscious !eepers of our society, so that it ne(er
forets it duties to those less fortunate than most$ Mou are the hope of those denied life and liberty$
Mou are a part of us, but with responsibilities far reater than all of us$ Mou are the (oices from the
undercurrents$
7ut the @uestion that must arise before you now is, are you any of these0 Maybe Justice is a
phantom which only raises dust and when that dust settles down, we all realiAe we were li(in a
mirae$ Maybe Law is not as rihteous as its proclaimed to be$ Maybe it"s the men, you, the !eepers
and creators of it, who ha(e corrupted the ideals of ?urisprudence$
It happens to all of us$ :ne loses focus and tends to stray away a little with time$ :ne
becomes comfortably numb to the pains of others they do not wish to see$
So we the underbelly of our society ma!es an appeal to you: Wa!e upN
We ure you not to dismiss us as those who do not matter$ Gor us the situation has turned
into an e>istential oneH we ha(e been pushed bac!, beaten and benumbed$ 7ut the nation should not
ta!e our belief in our democracy as ranted$ Mou should not ta!e our belief in ?ustice as ranted$ Gor
when the bow brea!s, the cradle falls$ And belie(e us the moment of rec!onin is nearin$
'his is not a threat, lest you feel so$ 7ut this is the anuish in our hearts$ 3ow could your
conscious allow you fruits of democracy for which we shed more blood than you, while the nation
denies us our basic rihts to life$ We are not as!in for what is not ours, we as! you to reconiAe us
as humans first and then wor!ers$ All we as! for is that we should not merely be treated as a factor
in balance sheets, but as people who ha(e a riht to li(e with dinity, ?ust as you do$ We do not see!
you capitalH all we as! is that we be paid our fair share from it$
So we call upon you, the men of law, that you ta!e our (oices to the corridors of power and
to other men$ We ure you to lend us your ears$ We belie(e that a different world is possible and its
time you fulfill your plede$
*<
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