Welfare legislation – is it working?
By Ali RejaOsmani New Delhi, December 2011

“Like the Jodhpur Declaration, now a Rajasthan declaration has to be made here. If you don’t make the law, and allow lawless conditions to prevail where workers are exploited, we have to follow the Gandhian method, namely of: ‘Break the law to make a better law’ which should not work through bureaucracy. We have to see that the rule of law runs close to the rule of life. Law is for life and what we need today is the protection of the law,” Justice Krishna Iyer stated at the Round-Table held at Jaipur on 8-9 September, 1994 under the banner of the Mine Labour Protection Campaign (MLPC) comprising many NGOs. This followed the “Jodhpur Declaration” that was made at the National Seminar on Mines and Mine Workers organized by the MLPC on 16  April, 1993.

A brief history
The Mine Labour Protection Campaign (MLPC) was formed in 1994 and emerged as a movement, in response to the problems and needs of the more than 2 million unorganized mine and quarry labourers, to fight against injustice and inequality throughout the state of Rajasthan in India. The MLPC works to organize groups such as self -help groups, unions, and cooperatives.

Rule 4 of The Rajasthan Workmen's Compensation (occupational diseases) Rules, 1965 provides for the establishment of a Pneumoconiosis Medical Board. The objective of this Board is to conduct medical examinations, submit medical reports, and grant medical certificates to workmen employed in mines. The central government and state governments will take steps to immediately ensure that appropriate and adequate medical and first-aid facilities, as required by Section 21 of the Mines Act, 1952 and Rules 40 to 45-A of the Mines Rules, 1955 are provided to workers.

Unfortunately the government did not act promptly to constitute this board and India’s administrative machinery was, up to a certain extent, responsible for it. But as pressure grew in the early 1990s, the government responded and the Labour Department reconstituted the Pneumoconiosis Board. A survey on tuberculosis was organised by the Rajasthan Medical and Health Department in mining areas in Jodhpur and its surroundings. The Labour Department was also directed to make necessary changes the Workmen's Compensation Act to make it easier for mine workers to obtain compensation through the courts.

However, even after the constitution of the Board in 1993, no workers affected with silicosis have ever received any compensation or reimbursement of treatment costs as directed by the courts.

MahitoshBagoria, the joint director of the Health, Environment and Development Consortium (HEDCON) states that his organization “was always keeping eye on the activities of the Pneumoconiosis Board. In early 2003, we found that this board was dysfunctional because of vacant posts of board members. We raised issues during a journalists' workshop on 10th February, 2003, and the matter was highlighted in many newspapers in Rajasthan. In next few months onwards, HEDCON corresponded with various departments, as well as political and administrative leaders - the Chief Minister, other Ministers, the Chief Secretary, and Secretaries of the Pollution Control Board, the Medical and Health Department and the Labour Department. Written communication was also taken up with State Human Right Commission. After getting no satisfactory result on December 2003 a Public Interest Litigation was filed in the High Court.”

These developments, however, remained superficial; the improvements in safety, certification, monitoring, and compensation procedures that were promised never materialized.

The quest for justice meandered around and eventually the office of the Labour Commissioner, which had initially turned downed claims for compensation, agreed to take the cases. Within two months, 19 compensation cases were filed with the Labour Department from silicosis patients. However after about a month, the litigators were told that without the certification of the Pneumoconiosis Medical Board, the Labour Court would not accept the cases. “We filed another PIL with the Rajasthan High Court seeking the compensation of the mine workers,” commented Bagoria.

The existing legislations
There are severallegislations which guarantee certain rights. The Mineral, Marble and Granite Policies of 1994 have promoted scientific exploration and exploitation of the State's minerals. The Industrial Policy of 1994 brought about a significant change in investment climate of the mining sector. The policy also holds mine owners liable for compulsory maintenance of medical and life insurance policies for each worker and enforcing mine safety standards.

Jivan Ram, a mine owner and former Councilor, said that “the unions are working in cooperation with us. They are also helping the mine workers in getting insurance. We don’t feel that the unions are hurdles for us. In my mines we follow wet drilling, provide masks to the workers and they also go for medical checkup to a government Health Centre at FidusarChoped, Jodhpur.”

However there is still a long way to go. No medical practitioner is yet authorised by the government to examine miners who have lung related conditions and no proper procedures are laid out for it. Therefore the rules exist only on paper and have never been applied.

Some state governments have passed legislation to tackle silicosis as an occupational disease. Silica is now mentioned in the Factories Act as a hazardous material that workers can be exposed to. The potential danger of silicosis has been known for a long time and a number of state governments have passed legislation to address this. Under the Workmen’s Compensation Act 1923, the Rajasthan Silicosis Rules, 1955 were established. A decade later, the government came out with the 'The Rajasthan Workmen's Compensation (Occupational Diseases) Rules, 1965 exercising its power under Section 32 of the Workmen's Compensation Act, 1923. These new rules came into force with effect from 20 September, 1965. Occupational diseases have now been classified under various categories, with pneumoconiosis covering silicosis as well as asbestosis or any disease accompanied by pulmonary tuberculosis.

It is the fundamental right of everyone under Article 21 to live with human dignity, free from exploitation. This right derives its strength from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42. Therefore, any subsequent legislation on the welfare of workers - men, women, and children of tender age - must include provisions to protect them against abuse, opportunities and facilities for the children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, and just and humane conditions of work, including maternity relief.

Since the Directive Principles stated earlier are not enforceable in a court of law it may not be possible to compel the state, through the judicial process, to make provisions that ensure these basic essentials by statutory enactment or executive fiat.   But where legislation has already been enacted by the State to provide these basic requirements to the persons, particularly those belonging to weaker sections of the community, the State can certainly be obligated to ensure observance of such legislation. Any inaction on the part of the State in securing implementation of such legislation would amount to denial of protection under Article 21, particularly in the context of Article 256 which provides that the executive power of every state shall be so exercised as to ensure compliance with laws made by Parliament and any existing laws which apply in that state.

In Consumer Education and Research Centre v Union of India, the Supreme Court was concerned with the rights of employees in the asbestos manufacturing industry. This was a Public Interest Litigation on work conditions and their health effects on workers in that industry. The Supreme Court concluded that a worker’s right to health is an integral facet of a meaningful right to life. The compelling economic need to work in an industry should not be at the cost of the worker’s health and vigour. In addition, the facilities and opportunities mentioned in Article 38 should also be provided to the worker. The court also concluded that continued medical treatment, while in service or after retirement, is a moral, legal and constitutional concomitant duty of the employer and the State.

Therefore, it must be held that the right to health and medical care is a fundamental right under 21 read with Article 39 (c), 41 and 43 of the Constitution to make life of the workman meaningful and purposeful with dignity of person.

“After the KhaanMazdoorMahaSangh (KMMS) (a Mine workers’ Union) came into existence in 2005, we are fighting for the mineworkers wage, eradicate the bonded labour system. Up to certain extent we were able to address those issues and achieved remarkable success as well. But still there are many workers who don’t dare to join a Union, because joining a Union might cause them in losing their livelihood,” said Soma Ram, the leader of the KMMS. There are more than 12,000 mines and around 20,000 quarries registered in Rajasthan. In addition to that, there are also thousands of unofficial mines. There is still a long way to go and a lot needs to be achieved to ensure the rights of the workers, who are our fellow human beings.