A structural analysis of Indian contract labor laws.

Author:Kumar, Pankaj

The Problem of Plenty

The Indian labor law regime faces the problem of plenty. There are about 44 Central labor laws and 200 state laws (Datta & Sil, 2007) governing labor matters. It is primarily the Contract Labor (Regulation & Abolition) Act, 1970 along with the Workmen's Compensation Act, 1923, the Factories Act, 1948, the Employees' State Insurance Act, 1948, Minimum Wages Act, 1948, Industrial Disputes Act, 1947, the Employees Provident Funds Act, 1952 and the Maternity Act, 1963 (1), which are largely applicable to the contract workers (Kumar, 2012). However, in spite of the plethora of regulations, the contract labor system in the country has been in disarray. Part of the problem can be seen by a structural analysis of these laws themselves. Through a structural analysis of the relevant aspects of these laws based on the eight fundamental concepts of opposites and co-relatives developed by Wesley Newcomb Hohfeld (2) in his two famous articles published with the same name: "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning", in Yale Law Journal in the years 1913 and 1917, an attempt is here made to identify the inherent problems in the contract labor laws in India.

Hohfeld built upon his discourse on legal entitlement on his understanding of rights, privileges, power and immunity. Some of these are 'in rem' or multital as in the case of rights and have "a large number of fundamentally similar rights residing in one person; and any one of such rights has as its correlative one, that is (having), fundamentally similar duties residing respectively in many different persons", while a duty in rem, or multital duty is "one of a large number of fundamentally similar duties residing in one person; and any one of such duties has as its correlative one, that is (having), fundamentally similar rights, or claims, residing respectively in many different persons (Hohfeld, 1917: 745). Others are those which are 'in personam' or paucital. Hohfeld gives several examples from day to day life to elucidate his analysis. "If at common law the lien of the mechanic, manufacturer or other laborer consists of the 'right to retain' the thing in his possession" or "a privilege of retaining possession, this is certainly a privilege relating to a thing. More than that, such privileges are multilal privileges, or privileges in rem, existing not only against the owner of the chattel but also against all persons in general, and correlating with no-rights in the latter" (Hohfeld, 1917: 737-38.). He further negates that such analysis is merely 'academic" and devoid of functional utility, and calls to apply his eight conceptions "in judicial reasoning to the solution of concrete problems of litigation" (Hohfeld, 1917: 711-12). In his structural analysis, Hohfeld has clarified that the existence of miltital or paucital rights or claims do not exclude the holder from holding other privileges or relations which may be joint or secondary, such as a claim arising when the primary right is breached. Corbin (1919:165) while simplifying the structural analysis of Hohfeld asks to determine the legal relations between A and B by seeking answers to the following questions:

(1) What may A (or B) do, without societal penalty assessed for the benefit of the other?

(2) What must A (or B) do, under threat of societal penalty assessed for the benefit of the other?

(3) What can A (or B) do, so as to change the existing legal relations of the other?

Corbin further explains the Hohfeldian concept of co-relatives and opposites that if one wishes to determine that A may conduct himself in a certain way he has a privilege with respect to B, and B has no-right that A shall not so conduct himself.

Likewise if we determine that A must conduct himself in a certain manner he has a duty to B, and B has a right against A.

However, if we determine that by his own voluntary act A can change B's legal relations with A (or with X), A has a legal power and B has a liability.

Similarly, if we determine that A cannot by his own voluntary act change the legal relations of B, then A has a disability and B has an immunity.

Hohfeld co-relatives (denoted by [??]) and opposites (denoted by [??]) as given below can be used in the analysis of all legal entitlements:

While pairs of correlatives shall exist together to establish the validity of a legal structure, no pair of opposites can co-exist together. To elaborate in terms of contract labor laws, when the contract workers are duty bound to work for certain hours for production, the contractor or the principal employer have the right to the labor of the workers. However, when we say that the workers have the privilege to work as per their desire, then no duty lies upon the contractor to pay them the minimum wages. Or when the workers have a right to minimum wages, the contractor or principal employer has no-right to pay them less. The difference between right-duty regime and privilegeno right regime is the invocation of the penalty clause in the event of breach of the former. Similarly if the contractor or principal employer has the power to enforce upon the workers certain enhanced working period, it becomes the liability of the workers to follow the change, however if the former has no such power (disability), the workers are immune to such imposition of new working period.

The Contract Labor (Regulations & Abolition) Act, 1970

The structural analysis of labor laws in terms of Hohfeld correlatives and opposites may first start with the Contract Labor (Regulations & Abolition) Act, 1970, which is the major law regulating contract workers relations.

The Contract Labor (R & A) Act regulates the legal entitlements or the rights, privileges, power and immunity of the workers, contractors, and the enforcement agencies (State). The Act provides both for primary and secondary entitlements to these stakeholders but has some structural issues leading to irregular realization of these entitlements. The Act applies to "every establishment in which 20 or more workmen are employed or were employed on any day of the preceding 12 months as contract labor" (section 1). Thus the Act in its' applicability provides a disability to the enforcement agencies in regulating organizations...

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