To Fully Understand what is happening in Lebanon today we have to delve, to some extent at least, into the history of Lebanon. Lebanon lies on the eastern born of the Mediterranean Sea and has some of the oldest continuously inhabited cities in the world like Beirut, Sidon, Tyre and Byblos. It finds mention in the Old Testament as a place from where goods were imported to Spain and ships returned with Gold, Silver, Ivory, Apes and Peacocks – the land of the Canaanites and, later, the Phoenicians. Bordering Syria, parts of Lebanon have historically been parts of Syria and vice versa.
The city states of Lebanon later became part of the Persian Empire. Alexander conquered Lebanon in the fourth century BCE from where it passed into the Seleucid Empire. Christianity came to Lebanon in the 1st century CE and it was an important centre of Christianity as was the rest of Syria and most of Anatolia. Lebanon became a part of the Byzantine Empire in the 4th century and was divided into two diocese which included large parts of Syria also.
In the 3rd to 4th century, an ascetic living in the region of Mount Lebanon formed a new sect within Christianity. He was Saint Maron and his followers came to be known as Maronite Christians. Though he preached a certain mysticism and asceticism, the Maronite church was always considered to be in complete communion with the Church of Rome.
In the beginning of the 7th Century, as a result of the Roman – Persian wars Lebanon again came under the Sassanid Persians. In the 7th Century itself, Muslim Arabs conquered Syria. Though the official language became Arabic and the official religion was Islam, much of the populace was slow to convert. The maronite Christians retained their religion and culture as also their Aramaic language to some extent and, to avoid persecution from Muslims, moved into the region around Mount Lebanon.
In the 11th Century the Druze faith emerged from a branch of Islam. The Druze do not consider themselves Muslims. They are an Abrahamic religion who profess that all the Gods therein are one. They only allowed proselytising between 1017 when Hamza ibn Ali ibn Muhammad was allowed by the Fattimid Caliph to preach his creed to 1043 when the Druze faith stopped accepting new converts. The Druze faith spread in Southern Lebanon.
Towards the end of the 11th century crusader knights from Europe had invaded this area. Responding to the call of the Byzantine Christians these knights set out on the crusades to “free the holy land” from the Arabs. Frankish nobles (from what is now France) established kingdoms in what is now Lebanon, such as the Kingdom of Jerusalem (founded in 1099 by Godfrey of Bouillon) and the County of Tripol (founded in1109 by Bertrand of Toulouse). These crusader kingdoms lasted for almost 200 years.
In the end of the 13th century Lebanon was conquered by the Mamluk Sultans of Egypt. Lebanon later passed between various Muslim rulers till the Ottomans consolidated their rule in the region. During the wars between the Mamluks and the Ottomans, the Amirs of Lebanon linked with Salim I of Syria who granted them semiautonomous status as long as they acted as his tax farmers. The Ottomans then ruled Lebanon through two main families, the Ma’an who were Druze and the Shihabs who were sunni muslims converted to Maronite Christian. The Ma’ans ruled Lebanon from 1517 to 1697. The main ruler was Fekhreddine II who can, in a sense be said to be the founder of Lebanon. He dreamt and fought for full freedom for Lebanon in vain and was finally executed for his troubles. He built close trade links with Venice and the Medici’s and modernised Lebanon in line with the renaissance. The Ma’ans were followed by the Shihabs. They ruled also as vassals of the Ottomans but the conflict with the Druze who found themselves being marginalised during the Maronite rule continued. The internecine warfare in Lebanon continued into the nineteenth century with the French backing the Maronites and the English backing the Druze and the Ottomans using both. Finally, in 1860 Napoleon III sent a large contingent of troops to Beirut to impose a partition. Druze control on the ground was recognised and the Maronites were confined to a hilly region cut off from Beirut and the fertile Beqa valley. Resentments grew in this period. This arrangement was ratified by the Concert of Europe. (The Concert of Europe may be said to be the precursor of the League of Nations formed by the Germans after the revolutions of 1848.)
We have had this peek into Lebanese history only to understand the demography. The Druze and the Maronites were always the ruling class but there were other sects, mainly of Muslims, both Sunni and Shia. The Maronites and Druze were always at daggers drawn and mostly always controlled by foreign powers who played them out one against the other.
During the 1st World War, contemplaing the defeat of the Ottomans and the collapse of their empire, the English and the French had already signed the Sykes Picot agreement about how to divide “spheres of influence” in the future independent states to be carved out of the Ottoman empire. However, after the war, the Paris Peace Conference of 1919 and the San Remo treaty of 1920 made the final arrangements which were finally ratified by the League of Nations in 1921. By the mandate of the League of Nations the French were given the authority to rule over all of what was called Syria which included the five districts that now form Lebanon. In the 1919 Paris Peace Conference a Lebanese delegation led by a Maronite Christian claimed a large amount of territory to the east which would otherwise have been in Syria. This was accepted in San Remo. Due to this the demographics changed. Now the Christians (all types – not only Maronite) formed just a bare majority of 52%. The Sunni Muslim population increased by eight-fold and the Shia population by four-fold. In 1926 the modern Lebanese Constitution was drawn up. It was said to be an attempt to balance power between the sects but the French made sure that their Christian allies would dominate. The President, by the Constitution, is required to be a Christian (in practise, a Maronite). The Prime Minister had to be a Sunni Muslim. The proportion of representation in parliament at that time was fixed at 6 Christians to 5 Muslims. The President had veto power over any legislation that parliament passed. In time, the proportion of Muslims grew as did the unrest.
During the 2nd World War the rule of Lebanon passed to the puppet Vichy Government of France which was controlled by the Nazis. They allowed Lebanon and Syria to be used as a transport route for the Nazis to Baghdad. The British fought to get control of Lebanon and Syria. On 26th November 1941 General Catroux of France announced that Lebanon would be free under the Free French Government2 in 1943 elections were held in Lebanon and Parliament abolished the mandate. At that time an unwritten national pact was adopted. The main points were:
Maronite Christians not seek Western intervention, and accept an Arab-affiliated Lebanon, instead of a Western one
a Muslims abandon their aspirations to unite with Syria.
a The President of the Republic and the Commander of the Lebanese Armed Forces always be Maronite Catholic.
a The Prime Minister of the Republic always be a Sunni Muslim.
a The Speaker of the Parliament always be a Shia Muslim.
a The Deputy Speaker of the Parliament and the Deputy Prime Minister always be Greek Orthodox Christian.
a The Chief of the General Staff of the Armed Forces always be a Druze.
a There always be a ratio of 6:5 in favour of Christians to Muslims in the Lebanese Parliament
Besides this, the national pact also made a division of the seats among the various religions. Five muslim sects were recognised (including the Druze) and 12 Christian sects (including the Maronites) and the Jews were recognised as a separate sect. There was a further sub-division of power among these sects.
Though Lebanon went through a period of relative peace and prosperity till the 1970s, history was posing a new challenge in its Southern sector.
In 1948 Zionist mobs massacred and occupied Palestine. 110000 Palestinians are said to have crossed the northern border of Palestine into southern Lebanon. Many more also came in during and after the 1967 Arab-Israeli conflict. Lebanon became a base for the Palestinians wanting to fight for their homeland. Due to this it also became the target of US and Israeli troops and bombings. Opinion was divided and sharply polarized in Lebanon about the Palestinians with the Muslims mainly supporting the Palestinians and the Maronite Christians mainly opposing.
Many other nuances of the situation need not detain us now. Tensions in Lebanon grew in the internal population till 1975 when they exploded into open civil war in Lebanon. There was a tangled network of sectarian militias operating throughout the country. Added to these were Palestinian armed groups, the Israeli army and their proxies, the Syrian armed forces and forces of other foreign powers including two peace keeping forces – one by the UN and another by a group of countries after the 82-83 peace accord. All of Lebanon was a military camp with travel even within Beirut becoming impossible without special permits from myriad forces who controlled portions of the city. The civil war ended in 1990 largely due to the Taif Agreement of November 1989. The main points of this agreement were that the Muslims would not try and merge Lebanon with Syria or some other Arab nation and the Christians would not look to the West while reducing the power of the Christians by making the proportion in Parliament as 1:1 between Muslims and Christians and removing the veto and overriding powers of the President (except in National Emergencies). All the militias (except Hezbollah) were disarmed and gave up control of their respective areas to the Lebanese Armed Forces. Hezbollah was allowed to remain as a defensive force (in part in recognition of the attacks coming from across the Israeli border).
In the end after the Taif Agreement the Lebanese parliament consists of a complex calculus. Lebanon is divided into 26 constituencies that are then grouped into five regions: Beirut, Beka, Mount Lebanon, North Lebanon, and South Lebanon. Each district has a certain number of parliamentary seats determined by district population. Of these districts, Beirut is the largest and elects 19 deputies while Minié is the smallest and elects only one. What makes Lebanon’s system unique is that each district reserves seats for different religious groups, ensuring representation of all minorities. Taking Beirut as an example, of the 19 total seats, 9 are reserved for Muslims and 10 for Christians (further divisions are made among the groups ensuring that the proportion of seats allocated to Sunni, Druze, Shi’a, Greek Orthodox, Maronite candidates represents the districts demographic reality). The final result ensuring a 64-64 split among Christians and Muslims looks like this (Other sects, though recognised are small and included in other larger sects, eg. Ismailis are included among the Shias).
Nor is this confined only too Parliament. The system was self propagating and therefore ensured that the seats in Civil Services (down to even what we would call class IV) and other important allocations like recruitment into the armed forces are all made in this proportion.
This is the sectarian system which rules Lebanon. Some may say that it resembles the reservation system in India. There is a crucial difference. The system of reservation in India has been made to aid an oppressed section of the people. In Lebanon it is all pervading. It has nothing to do with ending oppression only with preserving religious power.
We have to see the present turmoil in Lebanon in this context. Lebanese politics has never been simple to follow. For instance, lets start with Rafik Hariri, supposedly one of the main architects of the Taif agreement. He was a billionaire builder and the first post civil war Prime Minister of Lebanon from 1992 to 1998 and again from 2000 to October 2004 when he resigned. He was assassinated in early 2005. The Hezbollah was strongly suspected of having a hand in his assassination. In fact, only in August 2020 the Special Tribunal on Lebanon has found the 4 accused Hezbollah members not guilty. In the 2018 elections, the Future Party of Rafik Hariri, now headed by his son Saad Hariri suffered a setback and the Shiite parties, Hezbollah and Amal had big gains. In sptie of this, after the 2018 elections Saad Hariri became Prime Minister with the backing of the Hezbollah till October 2019. (Rafik Hariri’s personal fortune is said to have increased from $ 1 billion when he became Prime Minister to over $ 16 billion when he died.)
In October 2019 massive protests broke out in response to the Government’s new tax on various items like petrol, tobacco and VOIP (including whatsapp calls). All this was in response to the deteriorating economic condition of Lebanon due to corruption and flawed fiscal policies. Also the western powers were not in a mood to help Lebanon since the 2018 elections where the Hezbollah had emerged as one of the main forces. In this situation the economy was falling. In response to the protests, Saad Hariri resigned as the Prime Minister in November 2019. In December President Michel Aoun invited a former finance minister, Hassan Diab to form the cabinet and his cabinet was installed in January 2020.
Covid has worsened the economic situation. There is uncertainty and chaos everywhere. Hassan Diab made attempts to appeal to the IMF but this is controlled by the US. The US and the Western powers seem to have imposed an undeclared blockade on Lebanon due to the influence of the Hezbollah. In April the Hezbollah leader Hassan Nasrallah made a statement that if the western powers were unwilling to help China would help.
China is known to have a keen interest in Lebanon. It would be a vital part of its One Belt One Road initiative, situated as it is at a strategic point on the Mediterranean and being a perfect point for trade links between Asia and Europe. Israel and the US are, of course, against this Chinese initiative. China has been giving extensive aid to Lebanon and has been the largest exporter to Lebanon since the past few years. Some reports say that in this year (after Covid and the western undeclared blockade), 40% of Lebanon’s imports are from China. In May the Chinese delegation met the leaders of Lebanon and promised help in Lebanon’s failing electricity system (It is normal in Lebanon to have eight hours of power cuts every day), in building a coastal railway and in building a tunnel to directly connect the Bekaa valley. In the end of July the US embassy issued a statement accusing China of pulling Lebanon into a Debt trap. The Chinese responded with a statement saying that their aid is always without any political strings attached.
At present though there is a lot of different forces in the demonstrations ranging from sectarian forces to forces backed by foreign powers, there is large trend within the movement which wants an end to the whole sectarian system and the introduction of a proper democratic system. They suggest the immediate formation of an independent government of experts which will oversee the formation of a sort of constituent assembly to discuss and make appropriate changes in the Constitution ultimately leading to a properly democratic and non-sectarian parliament. The Lebanese Communist Party is a part of this this trend. The ICOR has also issued a statement in support of this trend. It will be the duty of all democratic forces all over the world to protect the independence of the Lebanese, to see that no foreign powers are allowed to intervene at this crucial moment and to back the non-sectarian trend in the movement of which the Lebanese Communist Party is a part.
Since the past week the Central and various state Government have been issuing various notifications curtailing the rights of workers. As many as 10 states have issued notifications amending the Factories Act, 1948. Most of these (States like Uttarakhand, Gujarat, HP, MP etc) have been issued using the powers under section 5 of the Factories Act. This is clearly misconceived. The powers under section 5 can only be used in a “public emergency” which has been defined to mean “… a grave emergency whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance.” It is clear that this provision for exemption from the provisions of the factories act is only to be used in times of war or civil war or such similar
Some states, like Maharashtra and Goa, have exercised power under section 65 (2) of the Factories Ac. This is closer to the satiation as it exists. This allows relaxations from certain provisions of the act concerning hours of work, weekly off, etc “…to deal with an exceptional press of work”. But here too, the exemption is to be given to the workers, not to the factories. Further, it has to be to deal with an exceptional press of work. This is not the case with the notification of the Government.
Given below is a table showing the changes made in various states
Total Hrs/ Wk
1. Maximum 6 hrs continuous working and then a break for min 30 mins
2. Female workers not allowed between 7:00 pm to 6:00 am
3. Wages to be paid in proportion of existing wages
Maximum 6 hrs continuous working and then a break for min 30 mins
Valid till 20th July
1. Spreadover shall not exceed 13 hrs/day (usual being 10.5 hrs)
2.Wages for additional hours will be twice the ordinary rate paid for 'overtime'
3. Valid for 3 months
Additional 4 hours per day shall be paid as overtime subject to a 24hr/week limit. Valid for 3 months
Overtime wages paid as per S.59 of the Factories Act.1948. .Valid for 3 months
Overtime wages paid as per S.59 of the Factories Act.1948.
18 (over-time work)
1. Two shifts of 11 hrs each in a day with separate set of workers
2. One hr break between the two shifts
3. Three hours overtime to pe paid as per rules
4.This shall apply only to those factories where permission by administration is given, in view of Covid 19
5.Valid for 3 months
1. Two shifts of 11 hrs each in a day with separate set of workers
2.Wages for additional hours will be twice the ordinary rate paid for 'overtime'
3. No working shift shall be more than 13hrs including the break
4. No overtime for 7 consecutive days
5. Valid till 30th June
Many of the statements in the table above are not mentioned in the notifications themselves but deduced from the law. For example, Punjab has only exempted from the provisions of section 54 (daily duty limit enhanced to 12 hours) and section 56 (daily spreadover extended to 13 hours). From this we can deduce that the weekly limit of overtime of 60 hours remains unchanged. As one can see the notifications are arbitrary and varying. Only the Punjab notification is within the bounds set by section 65 (2). The Maharashtra notification also broadly follows these bounds but is based on the amendments to the Factories Act made by the State in 2016, which are themselves under challenge by various unions.
Besides this, the UP Government has come out with an ordinance granting blanket exemption to all employers for three years from all labour laws barring a few. The few laws which have been kept are section 5 of the payment of wages act (when wages are to be paid), the workmen’s compensation act, the bonded labour act, the building and other construction workers act (because the government collects huge cess from all builders from this act) and laws relating to women and children.
Firstly such a notification is clearly unconstitutional. The constitution says that “labour welfare” is a subject on the concurrent list. However, if both that Centre and the state make laws on the same subject then the central law will prevail unless the state law has got the assent of the President. Only then will the state law prevail over the central law in that state. The ordinance does not show that any assent of the President has been obtained.
Further, it is clear while reading this ordinance that it has been made after downing two quarters. What is meant by saying that all labour laws are suspended for three years? What will happen to the ESI hospitals in the state? Will they close down? Who will pay the wages of the doctors, nurses and other workers in the ESI hospitals? Managements will not have to pay any contribution for three years. Will there be no law to provide for drinking water and urinals? The Factories Act which provides for this has been suspended. What will happen to my PF which is already accumulated? At what rate will interest be paid on that? This can only be fixed under the Act. If the act is suspended, then how can such rates be fixed? Will workers not have to give 14 days notice to go on strike? What will happen to latecomers? The timings and penalties are all fixed under the Standing Orders Act which is also suspended. What will happen to Judges and staff of labour and industrial courts? Will they have a holiday for three years? If they will continue hearing old cases, what will happen with the result. The award of the Industrial Tribunal only becomes enforceable under the Industrial Disputes Act, which is suspended! It is obvious that none of this has been thought of.
The MP Government has come up with another slightly different approach but which is almost equally idiotic. The MP Government has issued a notification purportedly under section 36 B of the Industrial Disputes Act, exempting “such industries” of the state from the provisions of the Industrial Disputes Act except for the provisions of Chapter V-A and the sections 25 N, 25O, 25P, 25Q and 25R. The condition for such exemption, as per the notification is that “adequate provision are made by such industries for the investigation and settlement of industrial disputes of the workmen employed by them.” Firstly, section 36 B only gives the power to exempt establishments or undertakings carried on by a department of that government. Secondly, such exemption is to be given only when the Government is satisfied that adequate provisions exist for the investigation and settlement of industrial disputes in such establishment. It cannot be given earlier on condition that such machinery will be set up later. Thirdly, the notification again makes no sense. 25P applies only to establishments closed before 1976. This has been continued. On the other hand, the provision for declaring a strike or lock-out illegal will not remain. The provision that prohibits financial aid to illegal strikes and lock-outs is also suspended. That means that anybody can go on strike or lock-out whenever they feel like it. There will be on conciliation, or reference of any matter to any labour court or IT. No provision has been made for if the management does not set up an adequate machinery. This will only lead to anarchy, open street fighting and murders. The whole machinery to enforce any settlement that may be reached will not exist.
Here too. What will happen to the labour officers, labour commissioners, labour courts and Industrial Tribunals? Since the very law that creates them is suspended, can they continue to function? Will no notice have to be given before effecting any change in service conditions? What about existing awards and settlements? These are binding under section 18, but the provisions of section no more apply!
Further, the industries which were under the MPIR act (as opposed to being under the ID Act) have been removed from the MPIR act. This means that all industries come under the amended ID Act as mentioned above.
The MP Government has gone further and purporting to act under section 5 of the Factories Act (as we mentioned above section 5 is only for situations of war, civil war or such) it has exempted all factories from all sections of the factories except for sections 6 to 8 (which pertain to registering of factories and appointing inspectors), sections 21 to 41H (about safety) and some other provisions of times of work. This is also without any application of mind. This means that there is no need for any urinals or drinking water to be provided.
During the course of writing this article, a new notification has been brought to our notice that UP also issued a notification like the Gujarat notification for the Factories Act. The main UP ordinance is still awaiting the assent of the President. Many unions including TUCI will be challenging these notifications in the courts. The way that the courts have been responding of late does not leave one with much hope in the courts. However the main question is that this is a clear attempt to put the whole burden upon the working class. This is an attempt to test how strong the working class in India is. It is up to us to show them. We have to use this opportunity to unite the working class of India and come together to fight this menace in any method possible.
Even before this present covid crisis, the economy was seeing a downturn. Even then the attempt was to put the burden upon the working class. This was to be done through amendments in the labour laws and also through measures like GST, etc. Then came covid. The responses of the Government were clearly without any coherent plan. Now the mess is compounded. Industries have lain closed for months. The crores of workers in this country and their families are starving. Lakhs have walked for hundreds of miles to reach their homes only to find destitution and misery there also. Factories are being restarted with no care for the safety for the workers. See what happened in Vizag, Neyveli and Chhattisgarh? Capitalism has shown that it will not only destroy the workers but also all of humanity. Today is the time for all workers to come together not only to save the lives of workers but to save humanity itself. n
After two months of unspeakable misery caused to millions of migrants in the country due to the national lockdown, which led to the loss of hundreds of lives, the Supreme Court took suo moto cognizance of the issue on Tuesday, May 26.
Till then, the SC had been in a state of denial, unquestioningly believing the executive's version that "all is well". The cases brought before it concerning several issues relating to migrant workers, such as payment of wages, food security, shelter homes, transport and access to trains were closed by the court without effective orders (detailed and documented in this article). The passive response of the apex court, and the excessive deference shown by it to the executive even in the middle of an unprecedented humanitarian crisis , had come under widespread criticism from ex-judges, senior advocates, and many members of legal fraternity, including law students. Even the ordinary citizens were anguished at the inaction of the apex court, going by many of the comments expressed in social media.
Former Supreme Court judges, Justices Madan B Lokur and V Gopala Gowda likened the Court's behavior to that of the emergency-era Supreme Court, where it had displayed a shocking lack of concern for the most basic rights of the citizens. Former HC judges, Justices A P Shah and Kailash Gambhir, criticized the Court's abdication of responsibilities. All these jurists were unanimous in their opinion that the Supreme Court let down the migrants amidst a grave constitutional crisis.
Senior Advocate Dushyant Dave, President of the Supreme Court Bar Association, minced no words in expressing disappointment at the Court's failure in holding the executive accountable. "Judges cannot sit in ivory tower and be blindfolded to the miseries of the citizens of India", he said. "This is not an emergency. The fundamental rights are not suspended. Yet, the judiciary has suspended the effective enforcement of fundamental rights", he added.
Expressing anguish at the passive response of the Supreme Court to the issue of migrant workers crisis amid the COVID-19 lockdown, Senior Advocate Jaideep Gupta commented that the top court "could have done a lot". "The migrants walk home is not a casual irresponsible act of a citizen. It's a moment of existential crisis for them. The Supreme Court could have done a lot. Only they could have", he said.
Senior Advocate Sanjay Hegde commented that the Court's inaction amounted to 'social distancing from the powerless'. "Judicial abnegation by the top court is not healthy for an institution trusted as being the protector and enforcer of rights", he said.
Recently, several leading lawyers - P Chidambaram, Anand Grover, Indira Jaising, Mohan Katarki, Siddharth Luthra, Santhosh Paul, Mahalaxmi Pavani, Kapil Sibal, Chander Uday Singh, Vikas Singh, Prashant Bhushan, Iqbal Chagla, Aspi Chinoy, Mihir Desai, Janak Dwarkadas, Rajani Iyer, Yusuf Muchhala, Rajiv Patil, Navroz Seervai, Gayatri Singh and Sanjay Singhvi - wrote to the CJI seeking urgent intervention in the migrants issue.
"This situation was compounded by the Hon'ble Supreme Court's failure to intervene in mid-day when millions of migrant workers had commences travelling home on foot, or by trucks", they said in the letter.
"As a consequence of the Court's failure to intervene, even though the number of Covid cases were then only a few hundred at the time, the millions of migrant workers were unable to proceed to their hometowns and were compelled to remain in small cramped tenements or rooms or on the pavements, without any employment or livelihood, and even a definite source of food. In fact this enforced stay in cramped quarters only exposed such poor worker to a higher risk of Covid infection", they added.
Meanwhile, many High Courts showed the way by staying true to their constitutional role of acting as a check on the executive.
Gujarat HC's Model of Holding the Executive Accountable
The Gujarat High Court took suo moto notice of a host of issues related to the COVID-19 pandemic and the lockdown. What is commendable is that the Gujarat HC was not seeking to substitute its wisdom with that of the executive. Rather, it sought explanation from the government regarding its plan of action to deal with the issues to ascertain if it passed the constitutional muster.
The Court intervened only when it found that the government's responses were grossly unreasonable, or blatantly unsatisfactory. For example, the bench comprising Justices J B Pardiwala and Ilesh J Vora was quick to dismiss the puerile explanation given by the State for not doing enough number of COVID-19 tests. The Government told the bench that more number of tests could lead to 70% of the population testing positive, and that this could lead to "fear psychosis". The Court emphatically said that this cannot be a reason for reducing the number of tests.
Also, the Court did not shy away from highlighting the unsatisfactory conditions in the Ahmedabad Civil Hospital, which was leading to high mortality rate of COVID-19 patients.
Unlike the SC, the High Court did not turn its face away from the plight of migrants, and passed directions to ensure food and shelter to them. As regards their travel, the Court directed the railways to either waive off their one way charges, or the State to bear their fare.
Karnataka HC Nudged Govt into Action
Similar was the response of the Karnataka High Court with respect to the migrants issues. The Court demonstrated that by simply asking the right questions and making the relevant observations, the judiciary can get the government to act. Actual directions may not be always necessary. A bench comprising Chief Justice A S Oka and Justice B V Nagarathna of the HC observed that inability to pay rail fare should not become a ground to deprive migrants of their right to travel to their native places. This, the court explained, was due to the fact that their lack of income is directly linked to the lockdown imposed by the State. So, State has the constitutional obligation to mitigate their sufferings.
This led to the Karnataka Government taking a stand that it will bear the travel cost for Karnataka natives to come back from other states. In response, the Court asked if such a stand would not amount to discrimination against migrants within Karnataka, on the basis of place of origin.
Following the sustained interrogation from the Court, the Karnataka Government diluted its stance by deciding to bear the cost of migrants' travel from Karnataka to their native states.
Court Would Be Failing In Its Role If It Doesn't React: AP HC
The Andhra Pradesh High Court observed that the Court would be failing in its role, if it does not react to the issue of migrants being forced to walk hundreds of kilometers to their native places.
A division bench ofJustice DVSS Somayajulu and Justice Lalitha Kanneganti passed a slew of directions to ensure proper availability of food, toilets and medical help etc. for these migrants. The Court observed that the situation was "alarming" and that "immediate intervention" of the Court was necessary.
Later, another bench headed by Chief Justice J K Maheshwari passed directions for creating temporary sheds for walking migrants, and to ensure their travel by bus/train within 48 hours of registration with the nodal officers.
Pity to See Migrants Walking: Madras HC
The Madras HC suo moto sought an action taken report from the State Government and the Centre on the steps taken for the relief of migrants. The Court posed 12 specific queries to the Central and State Governments such as data on the migrant workers stranded in every state, the assistance being provided to them, the number of migrant workers who died on their way to their home states, the compensation for the families of the deceased migrant workers, and the assistance being provided to those who have returned to their native states, "It is a pity to see the migrant labourers walking for days together to reach their native places and in the process, some of them had lost their lives due to accidents. The Government authorities of all the States should have extended their human services to those migrant labourers", observed the HC bench comprising Justices N Kirubakaran and R Hemalatha.
The High Court of Kerala has been monitoring the steps taken by the Kerala Government to provide food and shelter to guest workers. The Orissa HC and Bombay HC had taken suo moto notice of the issue of migrants, and passed necessary directions. The Bombay HC however deferred the hearing taking note of the pendency of similar issues in SC.
The Telangana High Court made a powerful declaration that medical emergency cannot be an excuse for the government to trample upon the rights under Article 21 of the Constitution. Holding thus, the Court proceeded to quash a Government Order, which prohibited citizens from getting COVID-19 testing done from private laboratories, even if they have the requisite approval. The HC also sought report from the Government on the COVID-19 tests and regarding the measures taken to allay the plight of migrants.
Importance of Public Criticism
Over All, the situation seemed to be a re-dux of emergency era, where the High Courts asserted their independent role to protect the rights of the citizens, despite the SC choosing to bow before the powers usurped by the executive.
In the face of mounting criticism, the SC has now chosen to act by taking suo moto notice of the issue.
This development also underlines the important role of informed,constructive criticism in a democracy. A bunch of vigilant citizens, who constantly demand legitimacy and justifications from centres of power, can prevent the institutions from completely failing in their constitutional duties.
It took a considerable amount of public criticism for the SC to say that there have been "inadequacies and certain lapses" in the measures taken by the governments for migrants welfare, deviating from its earlier "what can we do?" stand.
Let us hope that this course-correction by the apex court, though belated, leads to mitigation of the sufferings of the millions of migrant workers in the country.
Text of the letter Sent by Senior Advocates to CJI
To The Hon’ble the Chief Justice of India and His Companion Judges
Bhagwan Dass Road
It is with great anguish and dismay that we write to you as the citizens of India and senior members of the Bar. The Hon’ble Supreme Court has a pivotal constitutional role in protecting and safeguarding the fundamental rights and freedoms of the citizens of this country, and particularly the vast swathes of our population who eke out a living near or below the poverty line or minimum wages, and are even in normal times barely able to survive with dignity and respect. The Supreme Courts constitutional role and duty assumes even greater importance in the time of a crisis, such as the present when the entire country and its economy was “locked down” from 24th March by an order of the Central Government. More than 75% of the Indian work force earn their livelihoods in the informal or unorganized sector, and for them a stoppage of economic activity in the Medium, Small and Micro sectors has resulted in an immediate loss of employment, livelihood and the means of sustenance.
The “lock down” was imposed on 24th March without any consideration being paid to the plight of these poor, especially migrant labour [who number in the crores] earning their livelihood in the major cities, and for whom social distancing was and is a utopian impossibility. These poor citizens who were faced with the prospect of being cooped up in small cramped tenements/rooms or on the pavements, without any employment or livelihood or even a definite source of food and were thus compelled to start walking back to their home States, often thousands of kilometers away, with little children, family members or elderly parents. They were forced to do so as the Central Governments lock down had precluded them from taking trains or buses back to their home towns. The movement even at that juncture involved lakhs of poor, hungry and scared migrant labour. The Government, initially, sought to prevent such migrants from leaving and returning home.
While hearing a public interest litigation on the plight of the migrant workers, Alakh Alok Srivastava v. Union of India [Writ Petition (Civil) No. 468 of 2020], the Hon’ble Supreme Court considered the Status Report filed by the Learned Solicitor General, representing the Union of India, which referred to the Government’s circular dated 29th March 2020 prohibiting movement and transportation of migrant labourers and a direction to shift them to relief shelter homes and relief camps instead and the Solicitor General’s statement before this Court that as of 31st March, 2020, “no migrant person was walking on the roads in an attempt to reach his/ her home towns villages.” The Hon’ble Supreme Court, vide order dated 31.03.2020, expressed satisfaction at the steps taken by the Union of India to combat Covid-19 and proceeded to observe that “the migration of labourers working in the cities was triggered by panic created by fake news that the lock down would continue for more than 3 months.” As a consequence of the Court’s failure to intervene, even though the number of Covid cases were then only a few hundred at the time, the millions of migrant workers were unable to proceed to their hometowns and were compelled to remain in small cramped tenements or rooms or on the pavements, without any employment or livelihood, and even a definite source of food. In fact this enforced stay in cramped quarters only exposed such poor worker to a higher risk of Covid infection
Moreover, the Government’s statement has been clearly shown to be contrary to the facts. Several reports suggest that more than 90% of migrant workers did not receive Government rations in many States and were suffering from dire food shortage.
This failure to intervene in March, subsequently resulted in a massive migration of millions of workers by early May, when migrant labourers who were fed up with being virtually incarcerated for the previous 6 weeks, without employment or wages decided that they would be better off trying to go back to their homes. Significantly by this time the Covid infections in the country had crossed 50,000 and a significant number of these migrant workers were also infected with Covid. Even at this stage, the Government initially sought to obstruct their travel/movement on foot or by trucks. Subsequently the Government agreed to their movement by bus and trains [shramik specials]. However, even when the arrangements were made by the States to transport the migrant workers who wish to return home after having been cooped up for over 30-40 days, onerous conditions were sought to be imposed on them, such as obtaining a medical certificate after getting themselves tested at great cost to themselves. When arrangements are made to transport them by road, they were often left at the borders of the receiving states, which at times were unwilling to make any further arrangements for them to let them enter or reach their homes, or provide transport, almost as if this was not one country with a common citizenship. The right to life, liberty and freedom of movement of these hapless poor millions was rendered virtually meaningless in such circumstances.
Civil society had risen to the occasion and attempted to provide succour, food and shelter for these poor migrants. However, having regard to the millions involved and the distances to their hometowns civil society cannot, in real measure provide an adequate measure of succour or redress. As this situation had been brought about by the executive orders of the Central Government imposing a lock down, prohibiting public transport and interstate travel, it was necessarily the duty and constitutional obligation of the Government of India [with the State Governments] to ensure that these millions were expeditiously enabled during lockdown1 itself to travel home safely. However, both in during lockdown 1 and in lockdown 2 no steps were taken to redress the horrendous plight of these poor millions.
On 15th May 2020, a three-judge bench of the Hon’ble Supreme Court dismissed an application seeking immediate directions to all the District Magistrates to identify the migrant workers who are walking on roads, provide them with appropriate food and shelter facility and facilitate their travel back to their home states free of cost. Without going into the merits of the said application was dismissed and left it for the State Governments to sort this out. We respectfully submit that this institutional deference to statements made on behalf of the Government and the Court’s apparent indifference to this enormous humanitarian crisis, would if not rectified immediately, amount to the Court having abdicated its constitutional role and duty to these teeming millions of poor, hungry migrants.
Indeed, the current migrant crisis is symptomatic of how the constitutional promises of equality, life, freedom and dignity have been totally ignored by the Government while imposing arbitrary executive measures. The Hon’ble Supreme Court’s unwillingness to hold the Government to account and to provide succour to these poor millions, will severely erode its constitutional role and status as the guardian of the fundamental rights of the people. The Hon’ble Supreme Court has a glorious tradition of Public Interest Litigation (PIL) that changed the face of Indian constitutional jurisprudence forever, ranging from eradication of bonded labour, prison reforms, environmental compliances, and right to food, amongst others. Each of these PILs has resulted in far-reaching legal and policy changes positively affecting the lives of the millions of people. The Hon’ble Supreme Court’s deference to the Government and it’s unwillingness or expressed helplessness in the face of the above situation, casts a long shadow on our Country’s constitutional structure.
In the midst of the executive imposed Covid-19 lockdowns, the Hon’ble Supreme Court cannot retreat into a self-effacing deference, leaving millions of Indian citizens, especially those who are poor, vulnerable and impoverished, to the mercy of the executive, reminding us of ADM Jabalpur when detenues were left to the tender mercy of the executive with “Diamond bright Diamond hard” hope that something would be done.
The rights of citizens, especially the poor, are being violated with impunity by the executive in the name of addressing the pandemic. Millions have been forced to remain cooped up in slums or small tenements for weeks on end without employment or livelihood and in total denial of their rights to life and liberty.
The deference shown by the Hon’ble Supreme Court to the Government’s bland assertions and the expressed helplessness of the Hon’ble Supreme Court on the grounds of “issue being policy decision” or “inability to monitor” in the face of an unfolding human disaster, where millions of migrant workers are on the road, walking thousands of kilometers to reach their homes, is a matter of involving the violation of fundamental rights of millions of our poor citizens on account of executive action, that needs urgent attention by the Hon’ble Supreme Court on its judicial side.
The migrant workers’ issues are not a “policy issue.” They raise constitutional issues requiring a strict scrutiny of the executive action which has resulted in this situation. The core issues are of protection of the fundamental rights of these millions of poor migrant workers to life and liberty and their right to move freely throughout India and to return home, with safety and dignity guaranteed under Articles 14, 19(1) and 21 of the Constitution. If the Court is to fulfil its sacred constitutional role and duty, it must necessarily hold the executive accountable and require it to take steps to fulfil its obligations under the Constitution.
The Hon’ble Supreme Court has developed the jurisdiction of continuous mandamus to monitor executive action to ensure that orders of this Hon’ble Court are indeed followed. The apparent deference to executive action and the reliance on bald [and patently incorrect] statements made on behalf of the executive and the expression of helplessness on this part of the Hon’ble Supreme Court to monitor executive action, severely impairs this Courts constitutional status and duty.
This Hon’ble Court has the power bestowed by the Constitution of India under Article 142 to undertake any measure to do complete justice. The show of helplessness does no justice to the motto of this court “Yato dharmastato Jaya”
We address this letter because we believe that the Hon’ble Supreme Court’s failure to protect the rights of the hapless millions of migrant workers in March and its failure to scrutinize carefully the executives actions, which resulted in them being compelling to stay in cramped unhygienic accommodation without employment and wages and often without proper food and with a much higher risk of Covid infection that severely and excessively impaired the fundamental rights of the poorest sections of our citizens. This situation was compounded by the Hon’ble Supreme Court’s Courts failure to intervene in mid-May when millions of migrant workers had commenced travelling home on foot, or by trucks.
We believe that the survival of Indian democracy and the rule of law, particularly in the current Covid-19 pandemic, is dependent on the Hon’ble Supreme Court actively fulfilling its constitutional obligation of being the guarantor of the fundamental rights of citizens against State action.
The migrant workers crisis is continuing even today, with millions still stranded on roads at railway stations and state borders. We urge the Hon’ble Supreme Court to intervene and ensure that adequate transport arrangements, food and shelter are immediately provided for by the Central and State governments free of cost. At this time, we recall the words of Martin Luther King Jr. who said “injustice anywhere is a threat to justice everywhere”.
Signed : Chidambaram, Prashant Bhushan, Iqbal Chagla, Aspi Chinoy, Mihir Desai, Janak Dwarkadas, Rajani Iyer, Yusuf Muchhala, Rajiv Patil, Navroz Seervai, Gayatri Singh, Anand Grover, Indira Jaising, Mohan Katarki, Sidharth Luthra, Santosh Paul, Mahalaxmi Pavani, Kapil Sibal, Chander Uday Singh, Vikas Singh, Sanjay Singhvi
We are just on the second day of a 21 day enforced lockdown declared by the Government. The Finance Minister has just announced a relief package of Rs. 1.7 lakh crores. At the current rate of exchange this package amounts to $22.7 billion. Compare this with the package of over $2 trillion announced by the USA, or about $ 200 billion announced by UK or even the $ 45 billion announced by Italy (which has an economy much smaller than India). Even the Canadian Government (where the population is 1% of India and less than most major Indian cities) is rolling out $ 27 billion in subsidies and $55 billion in credit to help those affected by COVID 19. Keep in mind that India will have many more people affected by the lockdown, firstly because of its vastly larger population and also because there are a far greater proportion of poor who are in need of relief measures. This clearly shows that the relief measures being announced are woefully inadequate.
Actually even the figure of 1.7 lakh crores is misleading. This includes the amount of Rs.31,000 crores which is already in the fund for benefit of construction workers which the State Governments have been asked to spend for construction workers. This is not a new benefit for construction workers but money which was already provisioned for their benefit.
It also includes Rs. 20 increase in the daily wage of MGNREGA workers. This will only be available to them when they can do the work of MGNREGA, which seems unlikely till the lockdown lasts. There are about 27 crores of MGNREGA workers[i]. Each worker is to benefit by Rs. 2000 in one year (given that he gets the full 100 days of work, which never happens). So 54,000 crores is for the MGNREGA workers. So half of the package – 85,000 crores (31000 crores for construction workers and 54000 crores for MGNREGA workers) is no contribution by the Government at all. In any case, MGNREGA workers were due for a rise in wages, even otherwise. Their rate of wages is among the lowest in the country today.
About 20 crore women who have Jan Dhan accounts will get Rs. 500 per month for 3 months. This amount is too little to provide any real relief. The free LPG connections to the around 4 crores beneficiaries of the Ujjwala Scheme gives each a benefit of about Rs. 2400 (deferred over about 3 months taking one cylinder per month). About 3 crores senior citizens and widows are to be given Rs. 1000 each. Again not a great amount. Besides this BPL households will get each month 5 Kgs of rice or wheat and iKg of dal free. Rural farmers are to get Rs. 2000 each as direct transfers to their accounts in the first week of April. Besides this the PF contribution for workers (both employers and employees shares) for MSMEs will be paid by the Government for the next three months. Take the best case scenario of a farmer who is a woman having a Jan Dhan account and also a widow. She would then get Rs. 3500 and three free gas cylinders for three months and 5 Kgs of rice or wheat and Ikg of pulse. She would get a further Rs 500 per month and another 5 Kg of rice/wheat and 1Kg of pulses for the next two months. This is too meagre an amount to provide any real relief in todays times. The monthly estimate by the 7th Pay commission for a worker’s family of two parents and two children is 42.75 Kgs of Rice/Wheat and 7.2 Kgs of pulses (dals)[ii]. The cost of just food and cloth for such a family was calculated as Rs. 9300 per month as on 1st January 2016. Today, this would translate to well over Rs. 10000. When you declare a total lockdown, it must be assumed that all opportunities for earning are stopped. People will have to depend solely on savings and aid.
The Indian economy before the lockdown was none too healthy. Recent figures had shown that unemployment was at the highest in 45 years[iii]. The GDP growth rate has already fallen to about 4.5% in the third quarter of the current financial year. The stock markets were in a crash mode for almost a year, banks have been turning belly up, the growth in the manufacturing sector was down to around 0.5% in the third quarter. All this shows the ailing health of the Indian economy. The signs were clearly there for the Government or anybody else who wanted to, to read.
In times of recession, it is not the large enterprises which suffer the most. It is the small and medium enterprises which have to bear the brunt, eventually being eaten by the bigger fish. Even more it is the workers in these enterprises who suffer the most. The capitalist can make up his losses just by selling the assets like land, which have appreciated so greatly that he is often left with more than when he started. For the workers – especially the workers in the smaller enterprises and informal sectors, the contract workers, casual workers, self-employed workers, small sellers, small farmers, there is nothing to fall back upon. If the economy is to shut down for a prolonged period of time, it is these workers and farmers who have to be provided for.
What could be done for such workers and farmers? Let us take the workers first. The Government has to ensure that they will be paid their wages for the full period of the lockdown with assurances that their jobs will be retained. How can this be ensured? In the UK, their Chancellor, Rishi Sunak has announced that the Government would pay 80% of wages to employees (till £ 2500 per month) who were not able to work due to COVID 19 in an attempt to see that their jobs are retained. This cover will be backdated to start fr[iv]om the beginning of March and will last for three months and may be extended if necessary, it was announced. Other measures include help to those unable to pay their rents. After this announcement by the Chancellor two further schemes to help business were announced on Tuesday: a new interest-free Business Interruption Loan Scheme for small and medium-sized firms and a Bank of England finance option for bigger businesses. A support package for self-employed people is also expected soon as already announced by the Government.
The USA already has a robust system of unemployment benefits based on what you have earned in the past 12 months and subject to a minimum of 50% of the average. This is to be extended to those who are unemployed due to COVID 19. At the time of writing this the US Senate has just passed a new bill for $1.7 trillion. This includes $1200 direct aid to all individuals who earn below $75000 per year, $250 billion for further unemployment aid including for self-employed and $300 billion for the airlines industry.
Even in Pakistan, Imran Khan yesterday announced a package of Rs. 1.2 lakh crores to help people affected by COVID-19. This is for a population of 20 crores – less than a sixth of India’s population.
About other countries, the Business Standard Article of 20th March had this to say :
- Paid reductions in working time/partial unemployment benefits, which compensate workers for hours not worked, are being expanded or simplified in France, Germany, Italy and the Netherlands
- The Chinese government has directed employers to not terminate contract of migrant workers in case of illness or containment measures
- Unemployment insurance benefits have been expanded in several countries, including the United States. In the Philippines, the Social Security Scheme is prepared to give unemployment benefits for up to 60,000 job losses
- Countries like Italy and Japan are giving financial support and simpler procedures for allowing teleworking
- Provisions for paid sick leave for self-employed in Ireland, Singapore and South Korea
In the face of such measures the relief being provided to workers and poor farmers in India is only illusory and a farce! We have to demand. better and more meaningful support. Such measures can also be easily taken. For instance, India may not offer 80% of the wages to workers, but it can certainly say a lesser percentage, say 50%! It not that, it could offer enterprises which keep their workers and give them full pay a tax sop or a moratorium on taxes as an incentive to keeping the workers. It may not be able to give full relief to the farmers but it can certainly set up a Minimum Support Price and can ensure that it itself buys all farm produce at the minimum support price. This is especially important when the Rabi crop is in the process of harvest and is expected to be a bumper crop. This will, of course lead to the question of stocking such produce but that is not a real problem. The FCI godowns today have more stocks than ever before. An article in the Economic Times of 26th March 2020 based on the statement of the Food Minister, Ram Vilas Paswan, says that though the norm is to store 21 million tonnes of food grains we now have over 58.49 million tonnes (30,97 million tonnes of wheat and 27.52 million tonnes of Rice). There is nothing to stop the Government from directly sending all this food grain to affected people. It has already agreed to give them meagre amounts like 5 Kgs per month for 16 crore families it only comes to less than 1 million tonnes per month. Why is the Government hoarding food grains at a time like this?
Where is the money for all this to come from? Barclay’s has estimated that the loss to the Indian economy by just the three week lockdown is of the region of $120 billion. We need not spend as large amounts as the US or European. However, we cannot make worries about fiscal discipline stop us from providing needed aid at a time like this. India is today sitting on the largest foreign exchange reserves in history. India has foreign exchange assets of $ 447.3 billion in total reserves of $481.9[v]. Even if the Government were to increase its aid by ten times, this would not even be half of the foreign exchange reserve. Such an amount could give every worker of the 47 crore workers in our country the minimum wage of Rs. 10000 per month for Three months. Even if not this source, in such a crisis any source could be used. Fiscal discipline cannot guide spending in such a time. Germany’s Angela Merkel has said that they will spend whatever is necessary. Same with other countries. We can capitalise (print the money if necessary though such measures may not become necessary) at such a time of crisis. We can worry about inflation later.
Com Sanjay Singhvi is the General Secretary of TUCI
[i] From the MGNREGA website see http://mnregaweb4.nic.in/netnrega/all_lvl_details_dashboard_new.aspx
[ii] See page 65 of the Report of the Seventh Central Pay Commission published here by the Finance Ministry https://www.finmin.nic.in/sites/default/files/7cpc_report_eng.pdf?download=1
[iii] Though the Statistics Secretary, Pravin Srivastava said that the figures were based on a new matrix and new design when the report was released in May 2019, he would not deny that unemployment was at a 45 year high. In any case the Labour Force Participation Rate, which is closely allied confirms that unemployment was at the peak for the past fifty years.
[iv] See the BBC page here for more details https://www.bbc.com/news/business-51982005?xtor=AL-72-%5Bpartner%5D-%5Byahoo.north.america%5D-%5Blink%5D-%5Bnews%5D-%5Bbizdev%5D-%5Bisapi%5D
[vii] According to the Reserve Bank’s weekly supplement of 13th March 2020. See https://m.rbi.org.in/Scripts/BS_ViewWssExtractdetails.aspx?id=49546
We have seen the public notice dated 13th January 2020 calling for suggestions and objections on the draft Bill on the Code for Industrial Relations 2019 (No. 364 Of 2019). In this regard we would like to state as under:
Firstly, there is an established practise in India of making new laws based on tripartite consultation. Most labour acts have been enacted on the basis of direct tripartite consultation or on the basis of reports of committees which have heard both managements and workers representatives (like the Bonus commission or the First Labour Commission). Though there is a brief mention in the report of the Second Labour Commission about the consolidation of laws into fewer codes, there has clearly been no consultation with the representatives of workers when drafting the codes. That this Government does not believe in consulting with representatives of labour is borne out by the fact that there has been no ILC (Indian Labour Conference) since 2015. It used to be an annual feature heretofore. We have learned that even the State Governments were not consulted when making the drafts of the proposed labour codes. This shows that the drafts are unilateral and based only on the
In this regard one may also ILO convention 144 which India has signed and ratified. The purposes for which tripartite consultation procedures are required have been spelled out in Article 5 of that convention. These purposes are wide enough to cover the changes sought to be made. For instance, the introduction of “negotiating unions” and “negotiating councils” sought to be made are clearly towards appropriate implementation of convention 87 and 98 which have neither been signed nor ratified by India. Such changes clearly require tripartite consultation.
Secondly, the very idea of “consolidation” is an exercise in futility. Laws come into being not as a result of somebody’s abstract thinking but as a measure to cure perceived problems. Different laws, to tackle different problems will have to have different definitions. An abstract intellectual exercise to make common definitions is bound to lead to problems. For instance, the way in which “employee” has been differentiated in this act from “worker” will lead to the unwanted consequence that only “workers” have the right to form trade unions and not “employees” as was before.
Further, under cover of “consolidation” of laws, many retrograde concepts which have been sought by managements have been sought to be introduced. “Fixed Term contracts” for employment are sought to be introduced. Definitions of “worker”, “employee”, “employer”, “contractor”, “industry”, “settlement”, “wage” etc, which are the very bedrock of industrial jurisprudence, are sought to be changed in favour of employers. This will clearly be against the working class and is in direct opposition to the mandate of articles 38, 39, 41, 42 and 43 of the Constitution of India.
In this context one has to keep in mind that all labour law is in the nature of an extreme form of welfare legislation. It is not based on the law of contract but rather on the principal of “contracting out”. Hitherto labour law has recognised that contracts between employers and individual employees are not fair and are unconscionable. This is because the worker in the constant threat of unemployment can never bargain at an equal level with the employer and especially not with large corporations which have huge resources. If they were left to their own devices, workers would be badly exploited. Hence all labour laws are postulated on the premise that only collective contracts are binding and the law will prevail inspite of individual contracts. The present draft seeks to create the myth that workers and employers can contract at a fair level by introducing new definitions like proposed for “fixed term” employment and “settlement”.
Lastly, the draft is ill thought out and ill drafted. For instance, as shown below, the definitions will lead to unwanted consequences. The new definition of “wage” will lead to reduction in retrenchment compensation. The new definition of “employer” will lead to an ambiguity as to who is he employer. At least some of these are clearly the result of not having thought out the consequences though many may be results desired by this government to favour the managements.
For all the above reasons we reject the new draft outright and call for it to be scrapped altogether. To elaborate some of our points we are setting out our comments on this draft in more detail. Also annexed is a Schedule which shows the actual changes and our comments on the same which is self explanatory.
One of the most insidious changes sought to be made is the institutionalisation of “fixed term contracts” as a tenure of employment. Earlier, labour law had recognised only five tenures – permanent, temporary, casual, badli and probationer. All were well defined. In 1984, for the first time, the seed of the concept of “fixed term” was introduced by the introduction of section 2(oo)(bb) in the Industrial Disputes Act 1947 which removed the termination of the employment of such “fixed term” employees from the definition of “retrenchment”. However, this was only a partial change in so far as “retrenchment” was concerned. “Fixed term” was not made into a tenure of service. However, now it is sought to be made into such. This has already been done by the Industrial Employment (Standing Orders) Amendment (Rules) 2018, with effect from March 2018. Now, with the present proposed code it is sought to be made a part of the Act itself. As is well known, workers, under threat of unemployment are forced to enter into contracts for a “fixed term”. It was recognising such a mischief as undesirable that the Government of Maharashtra had introduced changes in standing orders requiring that all workers who had worked for 240 days of continuous service, must be made permanent even though they may have tenures as “casual” or “temporary” or “badli”. The present step is clearly a retrograde step. It will go against the mandate, inter alia, of article 39 and 41 of the Constitution of India.
The changes in the definition of “employer”, “employee” and “worker” taken together are confusing, self-contradictory and unworkable. “Employer” includes “contractor” but “contractor” is not defined for this draft. If we proceed on the footing that “contractor” is the same as defined in the code on social security, then the consequences are even more dangerous. There the definition of “contractor” has been changed from what is accepted today to include even a clearly “sham and bogus” contractor. Thus the concept of “employer” will have been divorced from the concept of “master and servant” which is the basis of much of labour jurisprudence. Again this change forgets the basis of labour law being to protect workers. It allows sham and bogus contractors to be employers forgetting that workers are forced to accept employment in such form though they are actually workers of the principal employers.
Further, the changes to the definitions of “employee”, “employer” and “worker” lead to the consequence that the contract worker is also the worker of the principal employer and the contractor. Hence who is the “employer” is ill defined. It will not be possible for such workers to pinpoint the responsibility of “employer” on any one person. Even the definition of “employer” is internally self-contradictory. The employer may be the person who employs or the person who has ultimate control of the affairs which may not be the same juristic person. The person employing may be a body corporate such as a company whereas the occupier of the factory may be a particular manager. This will lead to confusion as to who is to be responsibe for implementation of the provisions of the act and what if they act in opposition. For instance, what if the body corporate wants to retrench but the occupier does not follow the procedure? Who is to be held to account is unclear.
The change in the definition of “worker” leaves out apprentices who were earlier explicitly included. It is true that the Apprentices Act of 1960 held that apprentices are not workers. However, the workers have long demanded that this should be changed and they should be included in the definition of workers. On the contrary, the Government now sees fit to change the definition of worker to exclude apprentices. This is clearly not going to foster “equal pay for equal work” or other similar principles in the Directive Principles of State Policy. They leave workers open to exploitation under the guise of apprenticeship.
The definition of “settlement” includes individual settlements. This is clearly against the very concept of collective bargaining. At least here, the ILO convention on tripartite consultation is binding. Further, the change unsettles the very basis of collective bargaining that individual settlements are unfair and unconscionable. Far from being based on the concept of “contracting out”, it makes a mockery of the concept of contracting out.
The definition of industry has been the subject of much industry by the judges of the Supreme Court as testified by the judgements in the case of Safdarjung Hospital, Madras Gymkhana Club etc leading finally to the judgement of 7 judges in the case of Bangalore Water Works. The present definition seeks to undo not just the judgements but the jurisprudence behind the judgements. It is submitted that this jurisprudence was in keeping with Articles 38, 39 and 41 to 43 of the Constitution. However, now this is sought to be undone. This is clearly objectionable. Further, concepts such as “charitable”, “philanthropic”, “social”, etc are undefined and will lead to confusion. A manufacturer of sanitary pads or toilet paper may well claim to be a social activity and therefore not an industry. As far as “sovereign function” goes, the Indian Constitution is unique in so far it specifically allows the state to make laws to carry on any trade, business, industry or service under Article 19 (6) (ii). As such, when the state is specifically allowed to carry on an industry, it would not be fair to deprive the employees of that industry the protection of labour laws. Further as the first Law Commission has noted, the difference between sovereign function and non-sovereign function no longer exists. In the case of Shyam Sundar v State of Rajasthan the Hon’ble Supreme Court held as far back as in 1974 that famine relief is also not a sovereign function as private parties also do it. The courts has well recognised the question of sovereign function without this definition. As such it is unnecessary and confusing.
The change in the definition of “wage” is also clearly either badly thought out or made with malicious intent. This will have the effect of reducing retrenchment compensation, subsistence allowance etc. This is unacceptable. Further, if the employee is paid part of his wage in kind, then only 15% of such wage is to be reckoned as paid in kind. There is no justification for this and it is not workable. It is not clear as to 15% of what amount is to be calculated.
The provision for a Grievance Redressal Committee is also objected to. An individual worker has been given the right to raise a dispute concerning terms of employment and conditions of service but whose terms of employment or conditions of service is not specified. Firstly such a dispute would not be an industrial dispute, however, such worker will have the right to enter such dispute into conciliation after 30 days. No provision has been made to enforce the decision of this committee. The decision is not even made binding on the employer. Further, if it is meant that an individual worker can raise a dispute on terms of employment and conditions of service, this would go against the very concept of collective bargaining which the law has so far stood by. The moot question here is also how the representatives of workers are to be chosen. This will have to wait for the rules for our comments. Further, no provision has been made for a Vishakha Committee as directed by the Supreme Court.
The provisions of the proposed section 27 are clearly unconstitutional as no guideline has been provided as to which union has to be recognised.
As regards the provisions for Standing Orders under Chapter IV, it is alarming that the employer is permitted to make standing orders even on matters other than those in the schedule prescribed. There is no provision for displaying the standing orders in the establishment in the language understood by the majority of the workers. As regards standing orders, the workers of Maharashtra have gained such provisions by state amendments as were considered necessary to stop the evil of continuing workers as casual, badli, temporary for years. These have been held by the Hon’ble Supreme Court to be inamenable to change. The draft does not make clear what is to become of such state amendments.
As regards notice of change, clause (c) to the proviso to Section 40 states tht the employer may be exempted from giving notice of change in emergent situations “in consultation” with the Grievance Redressal Committee. This is unclear. It must be “in accordance with the decision of the Grievance Redressal Committee taken as per provisions of sub-section (7) of Section 4”. Otherwise “consultation” is reduced to mere window dressing.
The limitation of three years for an industrial dispute is clearly unreal. In many cases, poor workers are not even able to unionise so as to know their rights. In our country with over 50% being illiterate and with law books other than English being so unavailable, such a provision is only way of defeating the legitimate rights of workers. Even otherwise industrial relations are always fluid. Workers may not raise a certain dispute in certain circumstances like some of them not being made permanent or not getting minimum wages. Once they attain permanency and minimum wages, they may want to raise such a dispute. Stopping this would be clearly unfair and unjust. In many cases of sham and bogus contracts or of enforced casualness, workers have only organised and attained their rights after several years or even decades.
The provisions relating to strike are clearly as good as prohibiting strikes in all establishments, not just in public utilities as before. This is taking away the right to strike altogether.
The limitation of section 72 of “one year” in place of the earlier section 25H is clearly giving the employers a method of bypassing the law. Similarly the exemption of establishments where less than 50 workers were employed on any day in the preceding 12 months from the provisions of Section 74 (corresponding to section 25FFA of the I. D. Act) are clearly again giving concessions to employers.
Section 90 of the proposed code (corresponding to section 33 (1) of the Industrial Disputes Act, 1947) gives further concession to the employers that if a dispute is pending, they may make a change with regard to any matter connected with the dispute or may discharge or dismiss any worker for any misconduct connected with the dispute by giving notice of change under section 40. (Corresponding to section 9A of the ID Act). This will render the protection against arbitrary change totally toothless. The original idea was that there should be total protection against an arbitrary change which could only be made by settlement or award. Now the manager is literally left free to make any change he desires and it is left to the workers to challenge it in court and bear it till the outcome of the court.
It is pertinent to note that all the changes proposed are in favour of managements. We cannot see a single change in the proposed code which can be unequivocally be declared to be in favour of the workers or employers. This itself is clearly in violation of the directive principles of the Constitution mentioned above.
We specifically state that what is stated above is not exhaustive and we wish to be heard personally. We request you to call us for a personal hearing.
(Above comments on bill on Code of Industrial Relation was prepared by comrade Sanjay Singhvi, GS of TUCI. The ad came on 13th Jan. In some ads it was to be given in 15 days or in 30 days hence confusion. This draft has also been adopted by AITUC, CITU, BKS and other from Maharashtra.) n
There has been a lot in the press recently about Kashmir and Article 370. Even more on the social media. It is astonishing as to how much of this is plain false. Sometimes propaganda and sometimes just idiotic tweets. To set the record straight, here is the factual history and situation with references.
Kashmir has known human habitation since the neolithic period as can be evidenced by the archaeological digs at Burzahom, Gufkral and Kanispur.1 However, it is the history of the region rather than its prehistory which excites much comment today.
There are references galore in unreliable sources about how Kashmir is referred to in the Mahabharata etc. It is said to have been ruled by the Kamboj kings. However there is no historical record of any such Kings having existed much less of them having ruled Kashmir. Be that as it may, what is known is that Kashmir from prehistory to history had a close affinity to those who ruled in the areas that are today known as Persia and Afghanistan. The Rajtarangini is clearly a history of Kashmir written in Sanskrit by Kalahana in the 13th Century. However, many of its more remote references cannot be believed and it transfers to history from myth as it approaches the 12th and 13th Centuries.2
Many parts of Kashmir were ruled by different kings and dynasties. In around 1320 CE it is generally accepted, Zulju came and defeated Sahadeva of the Lohara dynasty and became ruler of Kashmir. There is a lot of uncertainty about where he came from but was most likely a descendant of the Chagatays from Central Asia (descended from Changiz Khan). It is also unlikely that he was a Muslim.3 After Zulju, Rinchan who was a Tibetan Buddhist from Ladhak and who had been a minister under Sahadeva, became the King of Kashmir, He converted to Islam and is often called the first Muslim king of Kashmir. Why he took to Islam has many stories associated with it. Some say he tried to convert to Hinduism first but was refused by the Brahmins. In any case, we can safely assume that there must have been a large number of Muslims already in Kashmir for him to have made this conversion almost immediately after becoming a king. After Rinchan, his minister, Shah Mir ruled as did his descendants from the Shah Miri dynasty till 1561.
From 1320 till 1561 the Shah Mir dynasty ruled Kashmir. The Islamisation of Kashmir was more or less complete at this time, what with such tyrannical rulers like Sikander Shah or Sikander Butshikan (Sikander the idol-breaker) who forced many to convert to Islam. In 1561, Kashmir was conquered by Akbar who added it to the Kabul subah. Later, under Jehangir, it was made into a separate subah itself. Mughal rule continued till the beginning of the 17th Century when it was run over by the Sikhs in around 1819. However, the Sikhs in turn, lost it to the English in the Anglo-Sikh war in 1846. It is said that Gulab Singh of Jammu was a subsidiary of the Sikhs. However, he kept out of the war till the end when he came out as a mediator of the British. In appreciation – and at the price of Rs.7500000 (Rupees Seventy Five Lakhs) – the British sold Kashmir to Gulab Singh.
Jammu and Kashmir thus presented a very complicated picture at the time of independence. When partition was finally agreed to, the princely states in what was to become India and Pakistan were given the right to either accede to one of these or to remain independent. This right was granted to them under the Indian Independence Act, 1947.4 There were many princely states which almost took positions which were not acceptable to their people – like Jodhpur, Baluchistan and Travancore. These questions were solved and the states acceded to Pakistan or India.
However, Kashmir presented a totally different question Whereas the majority of the population was clearly Muslim in this state, the ruler was a Hindu, Maharaja Hari Singh. He was of the mind to continue Kashmir as an independent entity. This position continued till October 1947. On around 24th October 1947, armed tribesmen from the North went on the rampage, taking over rule into their own hands. They were threatening to overrun the whole of the state of J&K when the Maharaja of Kashmir called upon the Indian Government to come to his aid and signed the instrument of accession on 26th October 1947.
There has been a lot of talk that the instrument of accession only allowed for 4 topics (Defence, External affairs, Communication and Ancillary subjects) be left to the dominion legislature for making laws. However, this was the same as the instrument of accession signed by all other princes and princesses. All were encouraged to form their own constituent assemblies and some of them did5. It was in May 1949 that the states met the leaders of the Indian Constituent Assembly and agreed that they did not need any separate constitutions and that the Indian Constitution would suffice. This is also when the representatives of J&K to the constituent assembly asked that their state be treated differently. But we are getting ahead of the story.
On 26th October Maharaja Hari Singh signed the instrument of accession. The instrument of accession signed by him was the same as that signed by more than 550 different princely states in India. All of them provided that the Central Indian legislature could only legislate on Defence, External Affairs, Communication and ancillary matters. All of them had a clause that the acceding royal did not have to accept the Indian constitution which would eventually be passed. This is the basis of the argument of those who say that Kashmir is an integral part of India.
The difference between Kashmir and other princely states lies in other factors. It is clear that the Indian authorities had accepted that there would have to be a plebiscite in Kashmir where the people would have to be given a chance to decide whether to stay in India or to go with Pakistan or stay independent. Though the instrument of accession does not mention any such assurance, nor was there any separate instrument at that time assuring the Maharaja of any such plebiscite, this promise of a plebiscite can be accepted as a basis for the accession from the surrounding circumstances.
The Indian side had always made it clear that the only correct method would be to accept the will of the people of Kashmir. This had to be so as the Indian leadership of that time had clearly accepted the concept of “self-determination”. Though the instrument of accession did not mention anything about determining the will of the Kashmiri people, the letter of Mountbatten, written as the Governor General of India, immediately after accepting the accession of Kashmir said, “it is my Government’s wish that, as soon as law and order have been restored in Kashmir and its soil cleared of the invader, the question of Kashmir’s accession should be settled with reference to the people”6 Nehru had repeated this assurance many times. On 25th October 1947, Nehru wrote to the Prime Minister of Pakistan, Liaqat Ali Khan, by telegram, “I should like to make it clear that the question of aiding Kashmir in this emergency is not designed in any way to influence the State to accede to India. Our view which we have repeatedly made public is that the question of accession in any disputed territory or State must be decided in accordance with the wishes of people and we adhere to this view.”7
The same telegram was repeated to Clement Atlee, the Prime Minister of UK. On 28th October 1947 after Indian troops had entered Srinagar by air on 27th, Nehru sent a telegram to Liaqat Ail Khan, “I would welcome an early opportunity of meeting you and discussing various problems that have arisen, more specially developments in Kashmir about which I have informed you. I earnestly hope that there will be cooperation between Pakistan and India in stopping raids and putting down disorder and then leaving choice about future to people of Kashmir. I am glad to learn that you are likely to visit Delhi for Joint Defence Council meeting soon.”8
There are many instances where Nehru reiterated that though Indian troops entered Kashmir in October 1947, this was only to help Kashmir to defend itself and the future of Kashmir would only be decided by the will of the people of Kashmir. For instance, his broadcast to the nation on All India Radio on 2nd November 1947. Nor was this only Nehru. As shown earlier, Mountbatten writing on behalf of the Government as the Governor General had stated that the people of Kashmir would be allowed to choose whether to remain with India immediately after accepting the accession of the Maharaja.
Even before the accession, Gandhi visited Maharaja Hari Singh on 2nd August and had issued a statement from Wah (a place in West Punjab in Pakistan) on 6th August. Gandhiji’s statement indicated that the will of the Kashmiris was the supreme law in Jammu and Kashmir and that the Maharaja and Maharani agreed with him.9 Gandhi wrote to the Nehru and Patel that the leaders of the National Conference were “..most sanguine that the result of the free vote of the people, whether on the adult franchise or on the existing register, would be in favour of Kashmir joining the [Indian] Union provided of course that Sheikh Abdullah and his co-prisoners were released...”10
The best proof that India wanted a plebiscite to be held was that on 1st January 1948, it was India which moved the UN to hold a plebiscite. India complained to the UN Security Council under Artilce 35 under which a state could bring to the notice of the UN any situation which might threaten internationa peace. The Indian compaint stated that Pakistan was aiding armed incursion into Kashmir and India had therefore sent troops there. It stated in the complaint that as soon as normalcy was restored, it would want a plebiscite or referendum to be held to determine the will of the people.11 Pakistan responded by refuting the allegations and suggesting that India had staged the accession of Kashmir in a fraudulent manner and that there was presently a genocide against Muslims and aggression against Junagadh. On 20th January the Security Council passed a resolution constituting a three member commission to investigate the complaint and try to resolve the dispute. There followed a period of intense campaigning and discussion. Not only between India, Pakistan and the UN but also with the State Government of Kashmir (led by Sheikh Abdullah), the administration of Azad Kashmir (led by Ghulam Abbas) and other countries taking part. For instance it was the Canadian delegation which first suggested that a third option of independence for Kashmir be a part of the plebiscite. There were also attempts to get an agreement for independence for Kashmir with guarantees from Indian and Pakistan. A plan was also put forward that areas like Poonch, Gilgit and Mirpur would go to Pakistan while the rest would remain with India. However, none of these options could get the required consensus.
In March 1948, China (then the Republic of China and not the People’s Republic of China) put forward a resolution in two parts. Firstly Pakistan was to persuade the tribesmen and its nationals to leave Kashmir, secondly conditions for a plebiscite were to be created which included withdrawal of Indian troops and appointment of a plebiscite administrator and thirdly the state government was to be reformed to represent all political groups. After much discussion, this finally resulted in UN resolution 47. The gist of the resolution finally accepted:
- Pakistan was asked to use its “best endeavours” to secure the withdrawal of all tribesmen and Pakistani nationals, putting an end to the fighting in the state.
- After the commission is convinced that point 1 is being put into force, India was asked to “progressively reduce” its forces to the minimum level required for keeping law and order. It laid down principles that India should follow in administering law and order in consultation with the Commission, using local personnel as far as possible.
- India was asked to ensure that all the major political parties were invited to participate in the state government at the ministerial level, essentially forming a coalition cabinet. India should then appoint a Plebiscite Administrator nominated by the United Nations, who would have a range of powers including powers to deal with the two countries and ensure a free and impartial plebiscite. Measures were to be taken to ensure the return of refugees, the release of all political prisoners, and for political freedom.12
Both India and Pakistan rejected this resolution. The Indian objections had to do with the fact that the Plebiscite administrator was to be given too wide powers (including appointing special magistrates), that the Muslim Conference (the opposition in Kashmir) and the Azad Kashmir representatives were to be chosen by themselves, that Indian troops were required to withdraw totally not even being retained for defence, etc. It also felt that asking for the return of all refugees was not realistic. Pakistan’s main objections were that there must be equal representation for Azad Kashmir and the Muslim Conference in the Government as the National Conference and it did not want even the minimum Indian forces retained in Kashmir as allowed by the resolution. Both however welcomed the UN Commission called the UNCIP (United Nations Commission on Indian and Pakistan). One important result however was the acceptance of ceasefire and the demarcation of a ceasefire line.
The UNCIP tried to make both India and Pakistan agree to the terms of a plebiscite. A plebiscite administrator was appointed in Admiral Chester Nimitz of the USA. The main stumbling block was the demilitarising of Kashmir. The UN appointed a Military Observers Group for India and Pakistan (UNMOGIP), to try and demilitarise, which still exists.13 However, though both parties accepted the solution, they had different interpretations of if. Especially the portion where India was to withdraw the “bule of its forces”. Also India had concerns about the Azad forces which in the period of negotiations had grown into an army of 32 battalions. To sum up in the words of Josef Korbel the Czech chairman of the commission, “Accordingly, the Commission did not see any other way out of the impasse than to propose an arbitration of differences. Pakistan accepted, India refused. The Commission’s report to the Security Council was quite critical of India’s attitude.”14/15
Since the commission could not achieve its aims, in December 1949 the UN appointed Gen. McNaughton, the Canadian President of the Security Council to informally mediate. He put forward a plan for demilitarising the area. Pakistan agreed but India did not. The UNCIP was succeeded by Sir Owen Dixon, an Australian jurist16 Dixon tried different approaches. He said if demilitarisation be not possible then it might be possible to take portions to be apportioned to India and Pakistan (like large parts of Jammu to India and Poonch, Gilgit and Mirpur to Pakistan) leaving the plebiscite only for the valley. This was also not accepted. He was succeeded by Dr. Frank Graham of the United States as the UN Mediator. Graham continued to try to mediate a solution till March 1953. At that point he reported that the differences between India and Pakistan (over how to demilitarise Kashmir, who should hold power in the meantime and how the plebiscite should be conducted) had been narrowed down and they should now discuss on their own. In 1953, therefore, from 17th to 20th August17, Prime Ministers Nehru and Liaqat Ali met in New Delhi and finally issued a joint communique. The communique stated that though there remained many preliminary questions to be thrashed out, all such questions would be thrashed out and a Plebiscite Administrator would be appointed by the end of April 1954.18
Without putting too fine a point on this, it can be seen that till 1954 the Indian stand was clearly that the Indian army had entered Kashmir only in response to the invasion by the tribesmen and that they intended to decide the actual fate of Kashmir by a plebiscite. The instrument of accession was only seen as a legal document to justify the entry of Indian forces in Kashmir. India therefore assumed a moral stand that Kashmir could not be signed away by the Maharaja but required the consent of the people. This stand was changed in 1957. When Krishna Menon spoke in the UN in 1957, he took a different stand. His stand was that the instrument of accession had made Kashmir irrevocably a part of India. He said that though India stood by its commitment to determine the will of the people by a plebiscite and to implement that will, this was a question between India and the people of Kashmir and neither Pakistan nor anybody else had any say in this.
There is a lot more to be said on Kashmir and the contradictory stands that the Indian Government took in later times but that would be another story and would detract from our aim to understand the true nature of the revocation of Article 370. We may mention that there was a meeting on Kashmir between India and Pakistan in 1963 between Zulfikar Ali Bhutto and Swaran Singh (both then foreign ministers). They agreed to try and resolve the Kahmir problem peacefully and effectively to demilitarise. In 1966, in Tashkent, Prime Ministers Lal Bahadur Shastri and General Ayub Khan met and could only issue a declaration of good intentions. In 1972 the Simla agreement was reached between Prime Ministers Zulfikar Ali Bhutto and Indira Gandhi. Innumerable more attempts have taken place but more in the nature of show than any real intent to solve the Kashmir problem.
Besides the official proposals of India, Pakistan and the UN, many other proposals have come up for solving the Kashmir issue. Such proposals cover the entire gamut of possibility. Kashmir to be partitioned between Indian and Pakistan or to be free or to have various degrees of autonomy. Such partitioning to be either on the basis of a comprehensive plebiscite or a partial one (only in the valley, mainly) or on the basis of a negotiated settlement. Only two proposals need to be mentioned for the purpose of this article. The first that we need to note, a stand rather than a proposal, is the one taken by the BJP. They hold that Kashmir is an integral part of India and there is nothing to discuss and, in fact, their manifesto of 1998 calls for seizing control of all areas “under foreign occupation”.
The other proposal which is necessary to note is the one by JKLF (the Jammu and Kashmir Liberation Front). From the very beginning, there were three trends in Kashmir. Two were major. The National Conference led by Sheikh Abdullah represented the trend to stay with India because the national conference had been fighting to remove monarchy and establish democracy even before independence. The other trend was of the Muslim Conference. They wanted a muslim state to be established and therefore wanted to lean towards Pakistan. At the same time there wee a large section within the National Conference and outside it which wanted an independent Kashmir. This remains a popular demand. A poll in 2007 showed that 90% of people in the Kashmir valley wanted independence.19 The JKLF therefore proposes that there should be an independent Kashmir which will then unite and demilitarise for 15 years at the end of which there will be a referendum.
However it is not these proposals that we are concerned with now. To return to Article 370, one can immediately see what was the nature o the situation in which Article 370 was enacted in 1950. It was first introduced in 1949 as an amendment to the draft constitution then under the consideration of the Constituent Assembly – Article 306A (as it was then called).
At the time of independence in 1947, there were two types of territories in India. The Provinces which were directly ruled by the British (which were clearly like today’s states) and the princely states which enjoyed a greater of lesser degree of autonomy. Each princely state had its own relationship with the British. Mostly Defence, External affairs and communication, along with ancillary subjects were under the British whereas many others remained with the princely state itself. There were various types of relationships. For instance in Berar, the region belonged, till the 1940s, to the Nizam of Hyderabad but was leased to the British at the end of the Nineteenth century. The citizens were expected to owe allegiance to the Nizam but to obey the laws of Her (or His) Majesty and both flags were flown. In most princely states there were two types of courts – the local courts to settle the more “mundane” local issues and the British courts which could be invoked by European citizens and which governed “federal” subjects. Most princely states has their own armies, own flag, own boundaries and own customs duties.
There were more than 550 princely states in existence in 1947 which accounted for over 40% of the area of what was to become India and about 23% of the population. The largest by area and the 3rd largest by population was Jammu & Kashmir (with only Hyderabad and Mysore having larger populations. It was one of only 5 Indian states whose ruler was entitled to a 21 gun salute. This was the actual measure of the importance of the state.
This was the situation when the Constituent Assembly of India undertook the task of preparing a constitution. The instrument of accession finally signed by the 550 states did not give full rights to the Dominion of India. As pointed out only the right to legislate on matters relating to Defence, External Affairs, Communication and Ancillary subjects were ceded to the Indian legislature. Each state was given the right to draw up its own constitution. The instrument of accession provided that the acceding state would not be bound by the Constitution of India. Some states like Mysore, Travancore-Cochin and Saurashtra Union had already formed their own constituent assemblies.
It was a long and tortuous process to integrate the Indian states with India. The British Cabinet Mission plan had envisaged only a loose federation of states with only three subjects with the centre. To allow the 550 odd states to become part of India in a full fledged way required many improvisations. Some of the smaller states (and some larger ones like Kolhapur) were integrated into the Provinces. They formally ceded their power to rule in every way to the Indian Government. They were given privy purses and allowed to retain their titles in return. Some other states were united into a larger state (for instance Saurashtra Union, PEPSU (Patiala and East Punjab States Union), etc. These states then had a Rajapramukh appointed by the President. They had to sign fresh instruments of accession and then were persuaded to hand over rights to legislate on all matters in the Central List and the Concurrent list, as per the Government of India Act, 1935 (broadly corresponding to the same lists in the present Constitution) to the Union Government. These latter agreements, made in 1948-49 with all princely states are called Merger Agreements. By the first article the ruler ceded to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State.20
All other states have signed such a “Merger Agreement” - except for Jammu & Kashmir. It is true that in 1954 the State Constituent Assembly of J & K agreed to adopt the Indian Constitution. However, it was the Indian Constitution with Article 370 that was agreed to be abided by. It was this article which was a special article for Kashmir which gave the centre only the right to make laws for defense, external affairs and communications as envisaged by the instrument of accession. Other central laws could only apply to the state if agreed to by the State Assembly
This article was not merely put in as a “sop”. As pointed out, J&K had a different history from the rest of India. At the very time of accession, they were promised a plebiscite to decide their fate. They were the only Indian princely state which did not sign a merger agreement. V. P. Menon21 has written in his famous book, “The Story of the Integration of the Indian States”, about Kashmir, “When the Constitution was being finalised, the choice before us was either to leave the State our of the purview of the Constitution or to include it as a Part B state22. Since the legal fact of accession was beyond question, we decided to include it among Part B states; but its relations with the Government of India were confined to the terms of the Instrument of Accession, namely defence, external affairs and communication subject to the proviso that other provisions of the Constitution could be applied to Jammu and Kashmir in consultation with the Government of that State”.
Thus it can be seen that Article 370 (which was introduced by the Drafting Committee by way of an amendment during the Constituent Assembly debates as Article 306A) was not introduced due to the need to appease anybody but was the embodiment of the fact that there had never been any merger agreement with J&K. N Gopalaswamy Ayyangar, one of the representatives involved in drafting the Constitution said, while replying to the question raised by Maulana Hasrat Mohan about why J&K was being discriminated.23
“The discrimination is due to the special conditions of Kashmir. That particular State is not yet ripe for this kind of integration.”
“In the case of the other Indian States or Unions of States there are two or three points which have got to be remembered. They have all accepted the Constitution framed for States in Part I of the new Constitution and those provisions have been adapted so as to suit conditions of Indian States and Unions of States. Secondly, the Centre, that is the Republican Federal Centre will have power to make laws applying in every such State or Union to all Union Concurrent Subjects. Thirdly, a uniformity of relationship has been established between those States and Unions and the Centre. Kashmir’s conditions are, as I have said, special and require special treatment.”
“We are entangled with the United Nations in regard to Jammu and Kashmir and it is not possible to say now when we shall be free from this entanglement. That can take place only when the Kashmir problem is satisfactorily settled.”
“Again, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish to go out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a constituent assembly, will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.”
“The effect of this article is that the Jammu and Kashmir State which is now a part of India will continue to be a part of India, will be a unit of the future Federal Republic of India and the Union Legislature will get jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the concurrence of the Government of the State. And steps have to be taken for the purpose of convening a Constituent Assembly in due course which will go into the matters I have already referred to. When it has come to a decision on the different matters it will make a recommendation to the President who will either abrogate article 306A or direct that it shall apply with such modifications and exceptions as the Constituent Assembly may recommend. That, Sir, is briefly a description of the effect of this article, and I hope the House will carry it.
Besides Maulana Hasrat Mohani, the only other person who even spoke during this debate was Mahavir Tyagi who only rose to say that he was not in agreement with the wording of the Article but would not move any amendment.
So, it is clear that, firstly, Kashmir acceded to India only on the basis of an assurance that a plebiscite would be held soon. Though such an assurance was not written into the instrument of accession, it is clearly discernible from surrounding circumstances. The Indian Government only brought the army into Kashmir to protect it against the invading tribesmen. Though such invasion may well have had the support of Pakistan, it is no excuse for occupying territory. This only leaves Kashmir in the position of being a region occupied twice over. Thirdly, even legally, if we were to say that the instrument of accession is a completed action, still, there has never been any agreement of merger and there cannot be any justification for any powers to the Indian Government further than those fouind in the instrument of accession.
But all such arguments are merely formal and pale into insignificance when faced with the biggest argument of all. What of the will of the people? Kashmir has had an independent history. It has its own language and culture. It has its own economy. In such a situation, can we claim a right to Kashmir only on the basis of an instrument of accession signed by its ruler? Leave aside the fact that he is a Hindu ruler of a Mohammedan people. If we claim our right to Kashmir on the basis of this “legal” document, then we relegate our independence to being a creation of the Indian Independence Act of the British parliament. The Indian Constitution starts with “We the people of India give unto ourselves...” not “Whereas the British Parliament had enacted the .....Act”. What then of the people of Kashmir? Have they no say in what is to become of Kashmir?
India has held onto Kashmir dressed only in the fig leaf of the instrument of accession for too long. Now along comes Modi to tear away even this fig leaf by denuding the Constitution of Article 370 and struts around in the Emporers new clothes not realising that he is actually naked. India today stands in Kashmir as a naked occupying force. At least Article 370 had given it some legitimacy in saying that we are still waiting for the will of the people through a plebiscite. Even the National Conference which had for so long supported the unity with India is now totally alienated. Nobody in Kashmir is willing to accept the rule of India. To keep ruling, there is a clamp down with all internet and mobile communication being shut down in the valley for almost two months. Since the last seventy years and especially in the last two decades, Kashmir has become the most militarised zone in the world. So the average Indians cough up lakhs of crores of rupees to maintain a huge military presence in a hostile territory the only result of which is that the people of that region will hate India even more! This makes no sense at all.
1 See Prehistoric Archaeology of Kashmir : An Overview by Dr. Abdul Rashid Lone accessible at www.sahapedia.org/prehistoric-archaeology-of-kashmir-overview
2 See A. L. Basham and also R. C. Majumdar “Ideas of History in Sanskrit Literature”
3 The Mongol Invasion of Kashmir A.D. 1320 by Sameer Ahmed Sofi of the Aligarh Muslim University published in the International Journal on Advances in Social Sciences and Humanities in February 2016
4 10 & 11 GEO. 6. CH. 30.
5 Saurashtra Union, Travancore-Cochin and Mysore for example
6 White Paper on Jammu and Kashmir, 1948, page-47
7 Various sources show this telegram to have been written on the 27th October. However, the 10 volume tome by Avatar Singh Bhasin published in cooperation with the Pubic Diplomacy Division of the Ministry of Externa Affairs of the Government of India gives this date. Hence this date has been put.
8 From the same writing by Avatar Singh Bhasin on page 4775
9 Reported by Pyarelal in Mahatma Gandhi : The Last Phase, Vol II pg 355
10 as per Ramachandra Guha’s artice in the Telegraph online edition found at https://www.telegraphindia.com/opinion/gandhi-in-kashmir-gandhians-on-kashmir/cid/1698228. Incidentally Sheikh Abdullah and his colleagues were released in September 1947 and Ramchander Kak the Prime Minister of Pakistan who was seen as pro Pakistan was dismissed at around the same time.
11 The text of this complaint is at http://www.jammu kashmir.com/documents/jkindiancomplaintun
12 The text of the resolution can be found at http://unscr.com/en/resolutions/doc/47
13 The Indian Government withdrew the 7000 square foot bungalow given to it in 2014. They however asserted that they will continue to work towards demilitarisation of Kashmir in rented premises.
14 Korbel, International Organisation, Vol 7, No. 4, (Nov. 1953) pp 498-510 published by University of Wisconsin Press
15 Korbel footnotes his comment to show that the report of the Commission can be found at “Security Council Official Records (4th year), Special Supplement No. 7
16 Owen concluded his report, “There is, I believe, on the side of India, a comception of what ought to be done to ascertain the real will of the people, which is not that tacitly asssumed by me. Doubtless it is a conception which Pakistan does not share.”
17 It is important to note that just 9 days before this Sheikh Abdullah, who was a supporter of India throughout, was arrested because slogans were raised in Srinagar calling for the evacuation of the Indian army.
18 The text of this joint communique is also available at the above cited artice of Josef Korbel.
19 See https://www.bbc.com/news/10161171
20 This is discussed in para 15 of the judgement of ht Supreme Court in the privy purse case at 1971 SCR(3) 9
21 V. P. Menon was seen as Sardar Patel’s right hand man. He has universally been held as the architect, with Patel of the integration of Indian states. In respect of Kashmir, he was sent to Kashmir on 26th October 1947 to get Hari Singh’s signature on the deed of Accession. L. K, Advani has also praised him as a defender of Hinduism
22 Part B states included the very large Indian states like Hyderabad, Mysore and J&K and also the large states formed by uniting other states like Saurashtra, PEPSU, etc
23 He was the only person who had any question on the article. He decried the discrimination to J&K, mostly on the ground that the Maharaja of Baroda was made to accept Merger while J&K was not. n