UNIT – 8 PUBLIC INTEREST LITIGATION

TEAM MEMBERS :

1. A.S. AFRINE BANU

2. M. ARTHI

3. P. JAYASHRI

4. R. SUSHMI

INTRODUCTION:

The expression Public Interest Litigation is borrowed from American jurisprudence.

It was designed to provide legal representation to a previously unrepresented group, etc. It
means lawsuits filed in the Court of law for the protection of Public Interest like pollution,
terrorism, road safety construction, etc. Any matter where the interest of the public at large is
affected can be redressed by filing a Public Interest Litigation in the Court. Public Interest
Litigation is not defined in any statute or any act. It has been interpreted by the judges to
consider the intention of the public at large.

History of Public Interest Litigation (PIL) in India

In 1979, KapilaHingorani filed a petition and secured the release of almost

40000undertrials from Patna’s jails in the famous ‘HussainaraKhatoon’ case. Hingorani was
a lawyer. This case was filed in the SC before a Bench led by Justice P N Bhagwati. Hingorani
is called the ‘Mother of PILs’ as a result of this successful case. The court permitted Hingorani
to pursue a case in which she had no personal locus standi making PILs a permanent fixture in
Indian jurisprudence.

Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He
did not insist on the observance of procedural technicalities and even treated ordinary letters
from public-minded individuals as writ petitions. Justice Bhagwati and Justice V R Krishna
Iyer were among the first judges in the country to admit PILs
Who can File a PIL and against whom?

Any citizen can file a public case by filing a petition: –

• In the Supreme Court under Article 32 of the Constitution of India.

• In the High Court under Article 226 of the Constitution of India.

• In the Court of Magistrateunder sec. 133 of the Code of Criminal Procedure.

• However, the court must be satisfied that the writ petition fulfils certain basic requirements
for a PIL as the aggrieved person of the letter is a public person. Also, any person is legally
liable or is addressed by a social action group for enforcement of constitutional rights which
is not competent to approach the court for redress.

• Public interest litigation can be filed against a state/central government/municipal authority

and not against any private party.

• The definition of a State is the same as that given under Article 12 of the Constitution and
includes the Government of India and the Parliament and the Government and Legislature
of each State and all local bodies within the territory of India or under the control of the
government of India.

Laws governing PIL in India

Over the years, the courts in India have formulated various principles with respect to PILs:

• Relaxed rule of locus standi- PILs can be filed by any person for the welfare of
others who are disadvantaged and are thus unable to approach the courts
themselves. Thus, the general rule of locus standi has been relaxed in cases of PILs
to protect and safeguard the interests and rights of these disadvantaged people.

• Relaxed procedural rules- Courts have treated even a letter or a telegram as a

PIL. Even the law regarding pleadings has been relaxed by the courts in cases of
PILs.

• Intervention by the courts– Courts has also highlighted the fact that Article 14 &
21 of the Constitution of India and the International Conventions on Human Rights
provide for a fair and reasonable trial. Thus, Courts must intervene when injustice
is done to many.
 • Question of maintainability- The Government may not be allowed to raise
questions as to the maintainability of the PIL if the court is prime facie satisfied
that there is a variation of any constitutional rights of a disadvantaged category of
people.

• Principle of Res Judicata- The principle of res judicata or any principles

analogous to it would depend on the circumstances and facts of the case and the
nature of the PIL.

• Appointment of a Commission- In special circumstances, a court may appoint a

Commission or other bodies to investigate. In the event that the Commission takes
over a public institution, the Court may direct management of it.

PUBLIC INTEREST LITIGATION RELATED TO LABOURS

1. Child labour

2. Bonded labour matters

3. Non –payment of minimum wages to workers and exploitation of casual workers.

4. Atrocities on women

BandhuaMuktiMorcha v. Union of India and Ors.1

Fact of the case:

The petitioner BandhuaMuktiMorcha is an NGO which works for the welfare of the
people. While they were conducting a survey, they found some stone quarries in Faridabad
where the workmen were in extreme situations. The working conditions there were very
unhygienic and unsuitable for these workers who had come from different parts of the country
to work here. The petitioner wrote a letter to Justice Bhagwati regarding the workplace and
working conditions of those workmen. This letter was taken as a writ petition under Article 32
of the constitution and a commission was made to enquire about the allegations put forth by
the petitioner. The commission proved the allegations to be right and there was infringement
of the rights of the labourers.

1(1997) 10 SCC 549

Issues:
The issues of the case are as follows:

1. Whether the writ petition filed under Article 32 of the constitution is valid or not.

2. Whether any fundamental right of the worker was actually violated or not.

3. Whether the Supreme Court is empowered to appoint any commission or investigating body
under Article 32 of the constitution or not.

4. Whether the workmen mentioned in the case are bonded labourers are not

5. Whether workmen in the present case entitled to relief under various social labour
legislations or not.

Judgement:
The Supreme Court found the petition true and therefore gave directions to the government of
Haryana, the Central Government and other administrative authorities as follows:

• The government of Haryana within 6 weeks of the judgement shall constitute a

vigilance committee in each division of district to ensure compliance under Section 13
of the Bonded Labour Act, 1976.
• The government of Haryana will appoint a district magistrate to identify the bonded
labour as per the law.
• The state government also has to take the help of NGO’s and other voluntary agencies
to ensure the implementation of the Bonded Labour Act, 1976.
• The government of Haryana, within 3 month of the judgement has to re-habitat the
bonded labourers.
• Both the Central and State Government together must ensure the implementation of the
Minimum Wages Act, 1948.
• The concern offices from the Central government has to conduct surprise visits at least
once a week.
• The Central Board of Workers education will organise camps often to educate the
workers about their rights and benefits provided by law.
Analysis:

In this case, the Supreme Court's conclusion was quite remarkable. The ruling of the
Supreme Court was based on logic. The state and federal governments must ensure that
employees have a pleasant working environment by assuring a clean environment, liberty,
integrity, and access to educational and medical services. The poor labourers, on the other hand,
were denied even these necessities, which was a violation of their Article 21 rights. The
Supreme Court can modify the constitution to enforce a constitutional right. This is significant
because, in India, where poverty, illiteracy, and ignorance are rampant, any fixed formula
would make enforcing a fundamental right difficult. This is also one of the causes of power
imbalances between opposing parties in a given situation. As a result, in such circumstances,
rigid adherence to the adversarial rule leads to prejudice towards the disadvantaged party who
has been denied legal assistance. When human rights are violated, particularly when they are
violated by deprived individuals, the court should show its authority; otherwise, the
fundamental rights enshrined in our constitution would lose their meaning. It would have been
impossible for them to prove that they were forced labourers due to their illiteracy and poverty.
It would be unethical to put these poor workers through a lengthy trial to acquire evidence.The
Supreme Court's rulings were crucial in preventing the country's bonded worker regime from
becoming established. The formation of the monitoring committee is just as important as its
role in identifying bonded workers. It will also contain non-political social members of the
group, which is important for locating bonded workers. Magistrates and judicial officers should
adopt strict measures, such as imposing high fines and harsh sentences, to manage labourer
breaches. Courts should not levy small fines on labourers who are barely making a decent
living. The constitutional rights guaranteed by our constitution are important, and they cannot
be ignored based on a technicality or a procedural requirement. Asa result, in the interests of
justice, it should be left tothe court to decide whether or not to treat a letter orany other form
of communication as a writ petition. The government, on the other hand, contends that forced
labour does not fall under the definition of bonded labour as specified by the Bonded Worker
System (Abolition) Act, 1976 in some situations. While this is true in this case, we cannot
ignore the fact that people were kept and stopped from quitting their worksites. For the sake of
defence, this tremendous manipulation cannot be neglected. Forced and the bonded worker is
an embarrassment to our civilization. The fact that bonded worker is no longer legal. However,
we still have a long path to go.
M.C. Mehta v State of Tamil Nadu and others2

The case, M.C. Mehta v. State of Tamil Nadu and others is a landmark case that gives
directions on the ways to curb Child labour in the country.

Facts of the case:

Sivakasi, a town in the state of Tamil Nadu was one of the worst-hit towns in terms of
child labour in the country. A solicitous lawyer, M.C. Mehta concerned by the unbearable state
of child labour in the town filed a petition under Article 32 of the Indian Constitution. He
contended that the employment of children in hazardous match stick factories was morally
preposterous and constitutionally invalid. The respondent government did not oppose the
claims and submitted ideas to deplete the problem. Therefore, the court issued certain directions
suggesting means to improve the lives of the affected children. However, subsequent to this
order an accident occurred in one of Sivakasi’s fireworks factories. The court took suomoto
cognizance of this incident.

Issue of the case:

1. Child Labour a concern relating to Child Protection or Labour Welfare?

2. Should child labour employment be a cognizable offence?

3. Can employment of a child as domestic helper be justified on the grounds of poverty and
thus, their need to add to family income?

4. What other steps can be taken by the government in this regard?

The court held that Child labour was not an issue in Sivakasi alone. Therefore, it should be
treated as a national issue. It observed that the rights of children were protected under Articles
24, 39(e) and 9(f), 41, and 47 of the Indian Constitution. These articles mainly provided for the
growth and development of a child by banning child labour, providing free and compulsory
education to children, providing a dignified standard of living to the children, etc. Domestic
laws such as the Apprentices Act, Beedi and Cigar Workers Conditions of Employment Act,
Child Labour (Prohibition and Regulation) Act also protected such rights. It was also noted
that India ratified the Convention on the Rights of the Child, which not only protects the child’s

2AIR 1997 SC 699

civil and political right but also extends protection to3 child’s economic, social, cultural and
humanitarian rights.

The court took into cognizance the various causes of the perpetual existence of Child labour in
India and cited various articles such as Child Labour in India by Nazir Ahmad Shah, Causes of
the exploitation of child labour in India by Dr. Amar Singh and Raghuvinder Singh. The
findings of Indian Child Labour by Dr. J.C. Kulshreshtha were also pointed out, which revealed
the main causes of failure as (1) poverty; (2) low wages of the adult; (3) unemployment; (4)
absence of schemes for family allowance; (5) migration to urban areas; (6) large families; (7)
children being cheaply available; (8) non-existence of provisions for compulsory education;
(9) illiteracy and ignorance of parents; and (10) traditional attitudes.

The court, however, concluded that the main cause was the deteriorating financial conditions
of the family which compelled the child to work and earn. It was held that the growth and
development of the child were necessary to fulfil the intention of the legislation. Therefore, the
formation of a Child Labour Rehabilitation cum Welfare Fund was ordered. Any person
contravening the provisions of the aforementioned legislation, in other words, any person
employing a child into hazardous labour would have to pay a sum of Rs. 20,000, which shall
be deposited in The Fund. The amount deposited shall be used for the growth and development
of the child.

As an alternative to curb the menace, the court ordered the government to see that an adult
member of the family in which a child is employed in hazardous jobs gets a job, in lieu of the
child. The employed shall have to in return ensure that the child receives full-time education
and is spared from the exertions of working in a hazardous place. Per contra, the court noted
that the attainment of employment of these adults might prove to be a burden on the state.
Therefore, it held that if the government is not able to provide an adult with a job, it must
contribute Rs. 5000 to The Fund for each child employed in a factory or mine or other
hazardous employment.

To ensure the efficacious implementation of the aforementioned, the court ordered that-

1. The government shall carry out a survey of child labour within 6 months.
2. A criterion assessing and observing the areas of employment which shall be deemed to
be hazardous for employment be formed.
 3. Employment should be given to the parents or any adult of the family at the same place
where the child was employed.
4. In cases where employment is not provided to the parents or any adult of the family, an
amount of Rs. 85,000 be paid to the parents of the child for the welfare of the child. In
case, the parents fail to send the child for education, the payment shall cease.
5. The education of the child in an esteemed institution or facility should be ensured.
6. The inspectors of the concerned shall ensure that education is provided free of cost, as
mandated under Article 45 of the Indian Constitution.
People's Union for Democratic Rights vs. Union of India3It recognised that a third party
could directly petition, whether through a letter or other means, the Court and seek its
intervention in a matter where another party's fundamental rights were being violated. In this
case, adverting to the Constitutional prohibition on beggar, or forced labor and traffic in human
beings, PUDR submitted that workers contracted to build the large sports complex at the Asian
Game Village in Delhi were being exploited. PUDR asked the Court to recognize that beggar
was far more than compelling someone to work against his or her will, and that work under
exploitative and grotesquely humiliating conditions, or work that was not even compensated
by prescribed minimum wages, was violate of fundamental rights.

Thus the court was willing to acknowledge that it had a mandate to advance the rights
of the disadvantaged and poor, though this might be at the behest of individuals or groups who
themselves claimed no disability. Such litigation, termed Public Interest Litigation or Social
Action Litigation by its foremost advocate, Professor UpendraBaxi, has given the court
epistolary jurisdiction.

In the case of People's Union for Democratic Rights v. Union of India , it was held that
Public Interest Litigation which is a strategic arm of the legal aid movement and which is
intended to bring justice within the reach of the poor masses, who constitute the low visibility
area of humanity, is a totally different kind of litigation from the ordinary traditional litigation
which is essentially of an adversary character where there is a dispute between two parties, one
making a claim or seeing relief against the other and that other opposing such claim or relief.
Public interest litigation is brought before the court not for the purpose of enforcing the right
of one individual against another as happens in the case of ordinary litigation, but it is intended
to promote and vindicate public interest which demands that violations of constitutional or

31982 AIR 1473

legal rights of large numbers of people who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and un-redressed.

Indian Federation of App Based Transport Workers vs. Union of India:

“In A First For India, PIL In SC Seeks To Classify Gig Workers As Registered Wage Workers”

A legal petition challenging the ‘unorganised’ status of gig economy workers has been
filed before the Indian Supreme Court on September ,2021. The public interest litigation (PIL)
filed by the Indian Federation of App-based Transport Workers (IFAT) seeks to classify gig
workers as ‘wage workers’ with better social security and employment benefits that white-
collar workers enjoy.

The PIL in India comes on the back of a global movement to provide gig workers with
social security benefits similar to full-time wage or salaried workers, including health insurance
cover, and other employment benefits.

PIL filed in India explicitly names food aggregators Swiggy, Zomato and cab
aggregators Ola, Uber who are currently one of the largest employers of gig workers in the
country. It claims these companies do not make an employment contract with the workers at
the time of recruitment but instead classify them as ‘partners’, which includes fewer benefits
and little control over the wages.

“If such a claim were to be accepted, this would be inconsistent with the purpose of
social-welfare legislation (enacted in the country). It is submitted that the respondent
companies (Swiggy, Zomato, Ola, and Uber), which owns the apps, exercises complete
supervision and control over the manner and method of the work with those who are allowed
to register on the said apps,” added the PIL.

The PIL further argues that by merely classifying themselves as “aggregators”,

companies like Swiggy, and Uber enter into “partnership agreements” which takes away the
“jural relationship of employer and employee”.

In 2008, the Indian parliament enacted the ‘Unorganised Workers Act’ to provide social
security and welfare to unorganized workers with no employment contracts. The act provided
recognition of workers through some sort of legal registration and hence making them eligible
for various social security benefit schemes framed by the Central Government and the State
Governments.
 However, the term ‘gig worker’ or ‘partner’ wasn’t officially recognised by any Indian
legislation and hence food delivery riders, and drivers on aggregator apps such as Ola and Uber
aren’t eligible for government grants of welfare the PIL said.

The Indian parliament then enacted ‘The Code on Social Security, 2020 in order to
amend existing legislations that addressed unorganised workers with no employment contracts.
The new code also sought to replace the number of existing labour legislation including the
Unorganised Workers Act, 2008.

And for the first time, The Social Security Code 2020 recognized “gig workers” and
“platform workers” as unorganised workers. But this Code of 2020 is yet to be enacted in India.
The PIL also challenges the central government over inaction to the code. And it further argued
that gig economy workers fundamentally lack the legal right to livelihood due to the actions of
aggregators, and sought urgent intervention from the Supreme court.

“The inaction on part of the State in ensuring social security to the “gig workers” and
“platform workers” notwithstanding the existence of the said laws, is the clearest violation of
Article 21 apart from a violation of Article 14 and Article 23 of the Constitution,” the PIL said.

This PIL also urges the Supreme Court to take into account various other current
developments in terms of amending Motor Vehicle Aggregator Guidelines, for recognition of
gig workers, and inclusion of food delivery and taxi drivers under the eShram portal that was
recently launched by India.

Advantages of PIL:

1) PILs have helped millions of citizens to claim their rights against the
governmentoverreach or private actions.
2) Vigilant citizens can find an inexpensive remedy because there is only a nominal rate
of court fees.
3) Litigants can focus on larger public issues in the field of human rights, consumer
welfare and the environment.
4) Public participation in judicial review of administrative action is assured. It has the
effect of making judicial process little more democratic.

Disadvantages of PIL:
 1) Many people started handling PIL as a tool for harassment because frivolous cases can
be filed without heavy court fee.
2) The judiciary has been criticised due to the overstepping of its jurisdiction.
3) PIL is sometimes misused by the public by seeking publicity rather than supporting the
public cause.
4) The abuse of Public Interest Litigation has become more rampant than the genuine
causes either receded to the background or began to be viewed with the suspicion.
5) Political pressure groups who could not achieve their aims through the administrative
process may try to use the PIL to further their aims and interests.

Conclusion:

Public Interest Litigation is working as an important instrument of social change. It is

working for the welfare of every section of society. It's the sword of every one used only for
taking the justice. The innovation of this legitimate instrument proved beneficial for the
developing country like India. PIL has been used as a strategy to combat the atrocities
prevailing in society. It's an institutional initiative towards the welfare of the needy class of the
society.

LEGAL SERVICES PROGRAMME

INTRODUCTION:

Legal Services includes providing Free Legal Aid to those weaker sections of the
society whofall within the purview of Section 12 of the Legal Services Authority Act, 1987.
It also entails creating legal awareness by spreading legal literacy through legal awareness
camps, print media, digital media and organizing LokAdalats for the amicable settlement of
disputes which are either pending or which are yet to be filed, by way of compromise.
NALSA also undertakes necessary steps by way of social action litigation with regards to any
matter of special concern to the weaker sections of the society. Legal services also
encompasses facilitating the beneficiaries to get their entitlements under various government
schemes, policies and legislations.

NATIONAL LEGAL SERVICESAUTHORITY:

 The National Legal Services Authority (NALSA) has been constituted under the Legal
Services Authorities Act, 1987 to provide free Legal Services to the weaker sections of the
society and to organize LokAdalats for amicable settlement of disputes.In every State, State
Legal Services Authority has been constituted to give effect to the policies and directions of
the NALSA and to give free legal services to the people and conduct LokAdalats in the State.
The State Legal Services Authority is headed by Hon’ble the Chief Justice of the respective
High Court who is the Patron-in-Chief of the State Legal Services Authority.A Senior most
Judge of High Court is nominated as Executive Chairman, SLSA.

In every District, District Legal Services Authority has been constituted to implement
Legal Services Programmes in the District. The District Legal Services Authority is situated in
the District Courts Complex in every District and chaired by the District Judge of the respective
district.A Civil Judge Cadre Judicial Officer is appointed as Secretary on full time basis .

Article 39A of the Constitution of India provides that State shall secure that the
operation of the legal system promotes justice on a basis of equal opportunity, and shall in
particular, provide free legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disability. Articles 14 and 22(1) also make it obligatory for the State to
ensure equality before law and a legal system which promotes justice on a basis of equal
opportunity to all. Legal aid strives to ensure that constitutional pledge is fulfilled in its letter
and spirit and equal justice is made available to the poor, downtrodden and weaker sections of
the society.

Section 12 of the Legal Services Authorities Act, 1987 prescribes the criteria for giving legal
services to the eligible persons. Section 12 of the Act reads as under:-

Every person who has to file or defend a case shall be entitled to legal services
under this Act if that person is –

(a) a member of a Scheduled Caste or Scheduled Tribe;

(b) a victim of trafficking in human beings or beggar as referred to in Article 23 of the

Constitution;

(c) a woman or a child;

(d) a mentally ill or otherwise disabled person;

 (e) a person under circumstances of undeserved want such as being a victim of a mass
disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster; or

(f) an industrial workman; or

(g) in custody, including custody in a protective home within the meaning of clause (g)
of section

2 of the Immoral Traffic (Prevention) Act, 1956 (104 of 1956); or in a juvenile home
within the meaning of clause

(j) of section 2 of the Juvenile Justice Act, 1986 (53 of 1986) or in a psychiatric hospital
or psychiatric nursing home within the meaning of clause (g) of section 2 of the Mental Health
Act, 1987 (14 of 1987); or

(h) in receipt of annual income less than rupees nine thousand or such other higher
amount as may be prescribed by the State Govt., if the case is before a court other than the
Supreme Court, and less than rupees twelve thousand or such other higher amount as may be
prescribed by the Central Govt., if the case is before the Supreme Court.

“National Legal Services Authority (Legal Services to the Workers in the Unorganised
Sector) Scheme 2015”.

Background

1. One of the major characteristics of the Indian economy is thecontribution of a vast majority
of labour employed in the unorganised sector. The economic survey of India (2007-2008) and
National Sample Survey for unorganized sector (2009-2010)have estimated the employment
in this sector at about 93-94% ofthe total workforce. Its contribution to the GDP is estimated
to be more than 50%.

2. Majority of unorganised workers (about 52 per cent) are employed in agriculture. Other
major categories include construction workers, workers in small enterprises, workers employed
through contractors even in large enterprises,artisans/craftsman, home based workers, workers
depending upon forest produce, fisheries, self-employed workers like rickshaw pullers, auto
drivers, coolies etc.
3. The distinguishing feature of the unorganised sector is non-applicability of most of the labour
laws and other regulations providing for decent working conditions, job security and social
security to the workers. The unorganised workers lack collectivebargaining power and are
therefore susceptible to excessive exploitation. They work under poor working conditions and
receive far lower wages/remuneration as compared to the organised sector, even for
comparable jobs. Most of theemployment in this sector is seasonal and the workers therefore
have no job guarantee. This also leads to large scale migration of workers from one place to
another leading to un-stability of work and residence which further often leads to discontinuity
of the education of their children. In cities, they live in slums without proper housing and
sanitation. Health care and maternity benefits which are statutorily available in the organised
sector are not available for them. The legislations providing for social securities for old-age,
health-care and assistance in the event of death,marriage and accidents etc., like the Workmen's
Compensation Act,1923; Employees State Insurance Act, 1948; Maternity Benefits Act, 1961;
Industrial Disputes Act, 1974; Payment of Gratuity Act, 1972; Employees' Provident Fund
andMiscellaneous Provisions Act, 1952 etc., do not apply to them. The combined effect of the
above factors is that many of them are generally, forced to lead an undignified and servile life.

Existing Legal Frame Work:

Although there are a large number of categories of employment in the unorganized

sector, legislation providing for working conditions etc., have been enacted only in respect of
few categories like:-

• Dock Workers (Regulation of Employment) Act, 1948;

• Beedi and Cigar Workers (Conditions of Employment) Act, 1966;

• Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service)

Act, 1979;

• Cine-Workers and Cinema Theatre Workers (Regulation of Employment) Rules,

1984;

• Building and Other Construction Workers (Regulation of Employment and

Conditions of Service) Act, 1996;

• Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act, 2013.

 In order to provide for social security to all categories of unorganised workers, the
Central Government has also enacted an umbrella legislation by the name of Unorganised
Workers Social Security Act, 2008.Various social security schemes have been/are required to
be floated for the benefit of the workers under the Building and Construction Workers Act,
1996 and Unorganised Workers Social Security Act, 2008.

Objectives of scheme:

1. To institutionalize essential legal services to all unorganized workers.

2. To get the gaps in legislation/implementation plugged through coordination with

government authorities and by initiating public interest litigation.

3. To mobilize the machinery of the State Government and the District Administration
to identify and register all unorganized workers in all categories and to extend the benefits of
all government schemes, as applicable to them.

4. To spread awareness among the employers regarding the statutory provisions and the
need for providing decent working conditions, living wages and social security to the workers.

5. To disseminate information among the workers regarding their entitlements under

the existing legislations and schemes.

6. To provide counselling and assistance to all categories of unorganized workers for

their registration with the concerned authorities under the schemes available for their category.

7. To assist the workers in availing the benefits of the scheme for which they are
registered as per their need/entitlement.

Guiding Principles:

The following principles shall be borne in mind by all Legal Service Institutions while
implementing the scheme for the unorganized workers:-

1. The Preamble to the Constitution of India assures equality of status and opportunity
to all citizens and to promote among them fraternity, assuring the dignity of the individual.
Article 42 mandates that the State shall make provision for securing just and humane conditions
of work and for maternity relief. By virtue of Article 43, the State is obliged to secure to all
workers, work, a living wage, condition of work ensuring a decent standard of life and full
enjoyment of leisure, social and cultural opportunities.

2. The Preambular promise of upholding the dignity of the individual cannot be fulfilled
unless the dignity of labour isensured.

3.The unorganized sector is one of the marginalized sections of the society and they, as
citizen of the country, are equally entitled to the right to work, just and humane conditions of
work, living wages, maternity relief and a decent standard of life. It is the statutory mandate of
the Legal Services Authorities to facilitate realization of this Constitutional assurance.The
Legal Services Authorities have to act as watchdogs against administrative inaction.

4.The welfare measures initiated by the Government in the form of legislations or

schemes etc. require the intended beneficiaries or the victims to mobilize the system for
realization of their rights/entitlements. The workers in the unorganized sector belonging as they
do, to the deprived and vulnerable sections of the society do not possess the capacity to
mobilize the system. It is the job of the Legal Services Authorities to provide them supportin
getting justice to their doorsteps.

5. The large number of categories of the unorganized workers, large population in each
category and their vast geographical spread necessitates a project-approach to the issue of
providing legal services to them. An institutionalized setup, committed work force and
sustained efforts for a considerable period of time arerequired to be able to make them capable
of realizing their constitutional rights.

Setting up of Special Cells

In order to provide effective legal services to the workers in this sector, each State Legal
Services Authority (SLSA) shall constitute a special cell focusing exclusively on these services.
The cell shall be manned by one panel lawyer specialising in Labour Laws, one
counsellor/consultant having requisite qualification/experience in relevant field, wherever
feasible, representative of an NGO doing demonstrably good work in the area and such number
of Para Legal Volunteers, as the SLSAmay prescribe.
The functions of the special cell shall be:

i) to organize and conduct Legal Awareness/Literacy programmes, training programmes

and seminars for unorganized workers;
ii) to co-ordinate with government authorities in relation with registration and extension
of the benefits of the schemes to the unorganized workers;
iii) to facilitate and provide assistance in filing, processing and furnishing application form
for registration and in availing benefits of the schemes to the unorganized workers;
iv) to provide legal assistance and legal aid to the unorganized workers in respect of any
claim or defence before any court or other authority;
v) any other function that the State Authority may prescribe for them.
vi) The special cell shall work under the guidance of the Member Secretary or any other
officer of the Authority, as nominated by the State Authority, and shall file
periodicreports of the progress of its assigned duties with him.
vii) The members of the cell shall be paid honorarium for each of the duties at such rates,
as may be fixed by the State Authority.

Conclusion:

NALSA is very sure that under the kind patronage and guidance of Hon. The Chief
Justice of India and Hon. Executive Chairman, a vibrant nationwide network of Legal Services
Authorities shall be made available to the people to provide free and competent legal services
to the eligible persons. NALSA is keen to develop and promote a culture of conciliation instead
of litigation in the country so that the citizens of this country prefer to resolve their disputes
and differences across the table in a spirit of goodwill and brotherhood. NALSA also wishes
to ensure that even the weakest amongst the weak in the country does not suffer injustice arising
out of any abrasive action on the part of State or private person.

References:

1) https://labourlawadvisor.in/blog/public-interest-litigation/
2) https://blog.ipleaders.in/need-know-public-interest-litigation-pil/
3) https://www.escr-net.org/caselaw/2015/bandhua-mukti-morcha-v-union-india-
ors-1997-10-scc-549
4) https://indianlawportal.co.in/m-c-mehta-v-state-of-tamil-nadu-and-
others/#:~:text=A%20solicitous%20lawyer%2C%20M.C.,morally%20prepost
erous%20and%20constitutionally%20invalid
5) https://lawlex.org/lex-bulletin/pudr-case/18896

6) https://inc42.com/buzz/in-a-first-for-india-pil-in-sc-seeks-to-classify-gig-
workers-as-registered-wage-workers/
7) https://nalsa.gov.in/about-us
8) https://www.google.com/url?sa=t&source=web&rct=j&url=https://nalsa.gov.i
n/acts-rules/preventive-strategic-legal-services-schemes/nalsa-legal-services-
to-the-workers-in-the-unorganized-sector-scheme-
2015&ved=2ahUKEwiF4M-
eqcX9AhVJ2DgGHflCCQcQFnoECDQQAQ&usg=AOvVaw2YaHNMj_53v
cNqFLKlNupk
 MODULE 8

INDUSTRIAL RELATION, HUMAN RIGHTS AND JUSTICE – REGISTRATION

OF CONVENTIONS WITH UNITED NATIONS ORGANIZATION

(RIDDHIMA KRISHNAN)

1. Introduction

Industrial Relations is a dynamic socio-economic process, involving an industrial relationship

system. Productivity in any organisation is the outcome of the joint efforts of two distinct
elements namely technological and human resources. The factor of production other than
labour can be manipulated easily. However, the human aspect in the organisation is the most
difficult to manipulate or manage in a proper perspective.

The human elements are the causes and the result of the interaction, social issues, duties,
responsibilities, and other activities. The high rate of industrial growth, increased pace of
technological development and complex nature of the jobs made the workforce of an
organization the source of completive success.

Hence, managing men has become a vital part of the present-day of management. Any
negligence of the human element leads to misunderstanding between the management and
workers. The results of which can be seen in the form of increased labour turnover,
absenteeism, indiscipline, the decline in the quality of work done, increased cost production,
and various problems in the market.

Literally speaking, industry means the secondary sector where factors of production (land,
labour, capital and enterprise or four M’s – men, materials, money, machines) are gainfully
employed for the purpose of production, and where a business organisation exists.

Relations means the relations that exist in the industry between the employer and his
workforce.

Industrial relations thus deal with the relationship between labour and management, and their
organization. The concept of ‘industrial relations’ is very broad and includes in its fold all the
relationships in modern industrial society which arise out of employee-employer exchanges
and also the role of the state in these relations.
It involves attempt to create workable solutions between conflicting objectives and values—
between incentive and economic security, between discipline and industrial democracy,
between authority and freedom and between bargaining and cooperation. 1

Relating Industrial Relations and ILO:

The International Labour Organization (ILO), while dealing with industrial relations, states
that they deal with either the relationship between the State and employers and workers’
organization or between the occupational organizations themselves. In other words the method
which ILO resorts to in dealing with industrial relations is Social Dialogue and Tripartism.

Sound industrial relations and effective social dialogue are a means to promote better wages
and working conditions as well as peace and social justice. As instruments of good governance
they foster cooperation and economic performance, helping to create an enabling environment
for the realization of the objective of Decent Work at the national level and it goes on to cover
varied ways of reaching consensus, viz., Negotiation, consultation and information exchange
between and among the different actors, Collective bargaining, Dispute prevention and
resolution, corporate social responsibility and international framework agreements.

In this way ILO aims to assist member States in establishing or strengthening legal frameworks,
institutions, machinery or processes for sound industrial relations and effective social dialogue
in member States. It supports the development of knowledge on global industrial relations, in
particular the actors and institutions involved in cross-border social dialogue and agreements.2

Objectives of Industrial Relations:

Nair and Nair citing Kirkaldy (1947), state that there are four objectives for industrial relations:

(i) To improve economic conditions of workers;

(ii) For state control on industries for regulating production and promoting harmonious
industrial relations;
(iii) For socialization or rationalization of industries by making state itself a major
employer;

1 SC Srivastava, Industrial Relations and Labour Laws, 6th ed., Vikas Publishing House Pvt. Ltd., 2012.
2 https://www.ilo.org/ifpdial/areas-of-work/industrial-and-employment-relations/lang--en/index.htm
For vesting of the proprietary interest of the workers in the industries in which they are
employed.

The Ultimate goal of Industrial Relations runs parallel to the ILO Constitutions’
preamble, i.e., “Whereas universal and lasting peace can be established only if it is based upon
social justice”, implying that the concept of Industrial relations revolves around the employer
and employee relationship and how state plays its part in regulating the same with the ultimate
aim of bringing about peace and maintaining industrial harmony which in return helps to
improve the standard of living of workers, bring profits to the capitalists and thereby contribute
in raising economy of the state/ nation as a whole.

HUMAN RIGHTS

(Geetha Lakshmi R)

2.Definition of Human Rights:

The term human rights had been defined under Section 2(d) of The Protection of
Human Rights Act ,1993 human rights means the rights relating to life, liberty, equality and
dignity of the individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by courts in India.

Meaning : Human Rights are those are rights inherited by humans and that rights are
inalienable, and fundamental to every human being irrespective of any discrimination and only
on the basis of one criteria ie., being a human. Human rights are standards that recognize and
protect the dignity of all human beings. Human rights govern how individual human beings
live in society and with each other, as well as their relationship with the State and the
obligations that the State have towards them. Individuals also have responsibilities: in using
their human rights, they must respect the rights of others. No government, group or individual
person has the right to do anything that violates another’s rights. Human rights law obliges
governments to do some things, and prevents them from doing others. Individuals also have
responsibilities: in using their human rights, they must respect the rights of others. No
government, group or individual person has the right to do anything that violates another’s
rights.3

Evolution of Human Rights:

Human Rights are derived from the principle of Natural Law. They are neither derived
from the social order nor conferred upon the individual by the society. Documents asserting
individual rights, such the Magna Carta (1215), the English Bill of Rights (1689), the French
Declaration on the Rights of Man and Citizen (1789), and the US Constitution and Bill of
Rights (1791) are the written precursors to many of today’s human rights documents.
Contemporary international human rights law and the establishment of the United Nations
(UN) have important historical antecedents. Efforts in the 19 th century to prohibit the slave
trade and to limit the horrors of war are prime examples. In 1919, countries established the
International Labour Organization (ILO) to oversee treaties protecting workers with respect to
their rights, including their health and safety.

The Birth of the United Nations:

The idea of human rights emerged stronger after World War II. The extermination by
Nazi Germany of over six million Jews, Sinti and Romani (gypsies), homosexuals, and persons
with disabilities horrified the world. Trials were held in Nuremberg and Tokyo after World
War II, and officials from the defeated countries were punished for committing war crimes,
“crimes against peace,” and “crimes against humanity.”

Governments then committed themselves to establishing the United Nations, with the
primary goal of bolstering international peace and preventing conflict. People wanted to ensure
that never again would anyone be unjustly denied life, freedom, food, shelter, and nationality.
The essence of these emerging human rights principles was captured in President Franklin
Delano Roosevelt’s 1941 State of the Union Address when he spoke of a world founded on
four essential freedoms: freedom of speech and religion and freedom from want and fear (See
Using Human Rights Here & Now). The calls came from across the globe for human rights
standards to protect citizens from abuses by their governments, standards against which nations
could be held accountable for the treatment of those living within their borders. These voices
played a critical role in the San Francisco meeting that drafted the United Nations Charter in

3 http://hrlibrary.umn.edu/edumat/hreduseries/hereandnow/Part-1/short-history.htm
1945.The United Nations has defined a broad range of internationally accepted rights,
including civil, cultural, economic, political and social rights. It has also established
mechanisms to promote and protect these rights and to assist states in carrying out their
responsibilities.

ILO CONVENTIONS:

As we all know that International Labour Organization (ILO) is the only tripartite U.N.
agency, since 1919 the ILO brings together governments, employers and workers and it's he
only devoted to promoting social justice and internationally recognized human and labour
rights, pursuing its founding mission that labour peace is essential to prosperity. The Right to
Work is a fundamental Human Right. Everybody has the privilege to work and can opt for
working in a secure environment. There should be equal pay and equal work opportunities
given to all without any discrimination

Human rights violation faced by labourer’s Fundamental principles of labour rights and
human rights are set out in the ILO’s Constitution of 1919 and in the Declaration of
Philadelphia of 1944 (appended to the Constitution). While the parallel tracks of labour law
and human rights law crossed in 2011, there is still much confusion about what exactly are the
human rights of persons when they are viewed as workers.

1. Discrimination at work
2. Gender Equality and Right to Work
3. Violence against Women
4. Equal Remuneration
5. Sexual Harassment
6. Equal Choice of Profession
7. Religious Discrimination

The ILO Declaration on Fundamental Principles and Rights at Work , adopted in 1998
and amended in 2022, is an expression of commitment by governments, employers’ and
workers’ organizations to uphold basic human values – values that are vital to our social and
economic lives. It affirms the obligations and commitments that are inherent in membership of
the ILO, namely:
 • Freedom of association and the effective recognition of the right to collective
bargaining;
• The elimination of all forms of forced or compulsory labour;
• The effective abolition of child labour;
• The elimination of discrimination in respect of employment and occupation; and
• A safe and healthy working environment. 4

These principles were also covered by the ILO Declaration on Fundamental Principles and
Rights at Work (1998) . Following the adoption of the Protocol of 2014 to the Forced Labour
Convention, 1930, a ninth ILO instrument was then considered as "fundamental". At the 110th
Session of the International Labour Conference in June 2022, the ILC adopted a Resolution on
the inclusion of a safe and healthy working environment in the ILO’s framework of
fundamental principles and rights at work . As a result, the ILO Declaration on Fundamental
Principles and Rights at Work, 1998, has been amended to this effect and the Occupational
Safety and Health Convention, 1981 (No. 155) and the Promotional Framework for
Occupational Safety and Health Convention, 2006 (No. 187) are now considered as
fundamental Conventions within the meaning of the 1998 Declaration, as amended in 2022 .

The eleven fundamental instruments are:

• Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.
87)
• Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
• Forced Labour Convention, 1930 (No. 29) (and its 2014 Protocol )
• Abolition of Forced Labour Convention, 1957 (No. 105)
• Minimum Age Convention, 1973 (No. 138) (Minimum 14 yrs in India. )
• Worst Forms of Child Labour Convention, 1999 (No. 182)
• Equal Remuneration Convention, 1951 (No. 100)
• Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
• Occupational Safety and Health Convention, 1981 (No. 155)
• Promotional Framework for Occupational Safety and Health Convention, 2006 (No.
187) 5

4 https://www.ilo.org/declaration/ILO Declaration on Fundamental Principles and Rights at Work

5 https://www.ilo.org/iloconventions
No one to be discriminated:

Article 21, the fundamental right of workers to live with dignity, as held by J Bhagwati
in the `People’s Union for Democratic Rights v. Union of India’ (1982)6 case. The Supreme
Court has held that Article 21 also encompasses the “protection of health and strength of
workers and just and humane conditions of work.” The rights of workers to non-discrimination,
a living wage, safe and humane working conditions, and a decent standard of life and full
enjoyment of leisure and social and cultural opportunities, is also enshrined in our Constitution
through Directive Principles of State Policy The right to form trade unions and engage in
collective bargaining is protected by Article 19(1)(c) , which guarantees all citizens the right
to form associations or unions for a lawful purpose. It is also a fundamental human right
recognized by the Universal Declaration on Human Rights, 1948, enabling the effective
participation of workers in economic and social policy.

C111 – Discrimination (Employment and Occupation) Convention, 1958 (No. 111)

The convention assigns to each State which ratified it the fundamental aim of promoting
equality of opportunity and treatment by declaring and pursuing a national policy aimed at
eliminating all forms of discrimination in respect of employment and occupation.
Discrimination is denied as any distinction, exclusion or preference based on race, color, sex,
religion, political opinion, national extraction or social origin (or any other motive determined
by the State Concerned) which has the effect of nullifying or impairing equality of opportunity
or treatment in employment or occupation. The scope of the Convention covers access to
vocational training, access to employment and to particular occupations and terms and
conditions of employment. Member States who ratified this Convention undertake to repeal
any statutory provisions and modify any administrative instructions or practices which are
inconsistent with this policy, and to enact legislation and promote educational programmes
which favor its acceptance and implementation in cooperation with employers’ and workers’
organizations. This policy shall be pursued and observed in respect of employment under direct
control of a national authority, and of vocational guidance and training and placement services
under the direction of such authority

International Convention on the Elimination of All Forms of Racial Discrimination

6 People’s Union for Democratic Rights v. Union of India’ - 1982 AIR 1473
 The Convention essentially resolves to “to adopt all necessary measures for speedily
eliminating racial discrimination in all its forms and manifestations, and to prevent and combat
racist doctrines and practices in order to promote understanding between races and to build an
international community free from all forms of racial segregation and racial discrimination”

Convention on the Elimination of All Forms of Discrimination against Women

The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW), 7adopted in 1979 by the UN General Assembly, is often described as an
international bill of rights for women. Consisting of a preamble and 30 articles, it defines what
constitutes discrimination against women and sets up an agenda for national action to end such
discrimination. By accepting the Convention, States commit themselves to undertake a series
of measures to end discrimination against women in all forms, including:

• To incorporate the principle of equality of men and women in their legal system, abolish
all discriminatory laws and adopt appropriate ones prohibiting discrimination against
women;
• To establish tribunals and other public institutions to ensure the effective protection of
women against discrimination; and
• To ensure elimination of all acts of discrimination against women by persons,
organizations or enterprises.

The Universal Declaration of Human Rights,ICCPR,ICESCR etc also dealt with the labour
perspective, which are stated below.

(RIDDHIMA KRISHNAN)

3. Study in relation to Indian Constitution – in comparison with

As stated earlier Human rights is the basic rights available by virtue of being born as humans
and the protection of this human rights is essential for the development of people and the same
has also been defined under s.2(d) of the Protection of Human Rights Act, 1993. The three
main pillars that uphold human rights round the globe is the Universal Declaration of Human

7 https://www.un.org/womenwatch/daw/cedaw/
Rights, the International Covenant on Civil and Political rights and the International Covenant
on Economic, Social and Cultural Rights.

i) UDHR

About:

The Universal Declaration of Human Rights (UDHR) is an international document adopted by

the United Nations General Assembly (UNGA). It establishes the rights and freedoms of all
members of the human race. It was accepted by the UNGA as per Resolution 217 during the
session on December 10, 1948. It consists of 30 articles detailing an individual’s “basic rights
and fundamental freedoms”. It is universally applicable for all human beings of varying race,
religions and nationality.

Observation:

It directly inspired the development of international human rights law, and was the first step in
the formulation of the International Bill of Human Rights, which was completed in 1966 and
came into force in 1976. Although the Universal Human Rights Declaration is not legally
binding, its contents has been elaborated and incorporated into subsequent international
treaties, regional human rights and instruments and in the legal codes of various countries

Whether ratified by India and its impact on India ?

At least one of the 9 binding treaties of the UDHR has been ratified by all 193 member states
of the United Nations, with the majority ratifying four or more.

This Basic document which helps govern and protect human rights, UDHR, has been singed
and ratified by India on 1 st January, 1942, as against the Indian Constitution, which was adopted
in 1949. Moreover, the framers of the constitution, had taken inspiration from the UDHR for
the Magna Carta of the Indian Constitution, Part III - Fundamental Rights.

In Kesavananda Bharathi vs. State of Kerala 8 it was held that even though UDHR is not
legally binding instrument, it shows how India understands or rather should understand the
nature of human rights at the time when constitution was adopted.

8 (1973) 4 SCC 225; AIR 1973 SC 1461

Similarly in The Chairman, Railway Board and Ors. Vs. Chandrima Das9 the Hon’ble
Supreme Court opined that UDHR adopted is a model code of conduct adopted by the UN
General Assembly. Its principles may have to be read in consonance with domestic
jurisprudence.

ii) ICCPR

About : The International Covenant on Civil and Political Rights (ICCPR) is a multilateral
treaty adopted by the United Nations General Assembly on 16 December 1966. It came into
force on 23 March 1976.

Observation:

The treaty commits its parties to respect the civil and political rights of individuals including,
freedom of religion, right to life, freedom of assembly, electoral rights and rights to due process
and a fair trial.

Whether signed by India and its consequences on India:

About 173 countries are parties to the Covenant. India Signed and ratified the treaty on 10th
April, 1979. The ICCPR is part of the International Bill of Human Rights, along with the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal
Declaration of Human Rights (UDHR).

Many of the civil and political rights contained in the International Covenant on Political and
Civil Rights, 1966 (ICCPR) are also contained in the Part III of the Constitution of India, India
being a signatory to it.

In the case of Jolly George Varghese & Anr. v. Bank of Cochin10, J. Krishna Iyer observed
that though a provision is present in ICCPR but not in Indian Constitution, does not make the
covenant an enforceable part of ‘Corpus Juris’ in India.

The body that regulates and protects human rights in India is the National Human Rights
Commission (NHRC). For making a Treaty as binding in any particular State, it has to ratify
the same, during this time any country can also make some declarations. In this regard, India
has also made certain declarations with respect to the ICCPR.

9
AIR 1973 SC 2720; (1973) 2 SCC 696
10 1980 AIR 470, 1980 SCR (2) 913
iii) ICESCR

About:

The ICESCR is a multilateral treaty adopted by the United Nations General Assembly on 16
December 1966 as part of the larger resolution on Universal Declaration of Human Rights. It
aspires to provide non-self governing and trust territories and individuals , labour rights, right
to health , right to education and the right to an adequate standard of living. It also focuses on
social and cultural rights like food, health, education, shelter etc.

Whether India ratified ICESCR and its impacts:

India ratified this covenant on April 10, 1979. Most of the provisions in this covenant are found
in Part IV (DPSPs) of the Indian Constitution.

The Indian Supreme Court has adopted an expansive interpretation of the constitutional right
to life, based on principles of human dignity, to protect certain economic and social rights,
including the right to adequate nutrition, clothing and shelter, the right to medical facilities, the
right to earn a livelihood, and environmental rights.
The Supreme Court has held in Paschim Banga Khet Mazdoor Sabha v. State of West
Bengal11 that the State's obligations to protect economic and social rights may include
obligations to provide additional resources, for example to ensure essential healthcare services.

The table below shows provisions relating to Industrial relations and Human Rights and how
its impacts are covered under the Indian Constitution and the corresponding provisions, where
applicable, under the three main declarations/ Conventions:

S.No. Indian Universal International International

Constitution Declaration of Covenant on Civil Covenant on
Human Rights and Political Rights Economic, Social
and Cultural
Rights

11 (1996) AIR SC 2426/ (1996) 4 SCC 37

1. Equality and equal protection before law
Art. 14 Art. 7 Art. 14(1) -
2. Equality and equal protection before law and no discrimination on the basis of
any ground such as race, colour, sex, language and religion
Art. 14 and - Art. 26 -
Art. 15
3. Remedies for violation of fundamental rights
Art. 32 and Art. 8 - -
Art. 226
4. Right to life and personal liberty
Art. 21 Art. 9 Art. 6(1) and Art. -
9(1)
5. Protection in respect of conviction of offences
Art. 20(1) Art. 11(2) - -
6. Freedom of Speech – Right to voice opinion
Art. 19(1)(a) Art. 19 Art. 19(1) and -
Art. 19(2)
7. Prohibition of trafficking and forced labour
Art. 23 - Art. 8(3) -
8. Protection against detention in certain cases
Art. 22 - Art. 9(2), Art. 9(3) & -
Art. 9(4)
9. Right to assemble peacefully
Art. 19(1)(b) - Art. 21 -
10. Right to form union or association
Art. 19(1)(c) - Art. 22(1) -
11. Right to work
Art. 41 - - Art. 6(1)
12. Equal pay for equal work
Art. 39(d) - - Art. 7(a)(I)
13. Right to living wage and decent standard for life
Art. 43 - - Art. 7(a)(II)(d)
14. Humane conditions of work and maternity leave
 Art. 42 - - Art. 7(b) and
Art. 10(2)
15. Facilities and opportunities to children for prevention against exploitation
Art. 39(f) - - Art. 10(3)
16. Improving public health and raise level of nutrition and standard of living
Art. 47 - - Art. 11

JUSTICE

(Selma GS)

PRINCIPLES OF LABOUR LEGISLATION AND INDUSTRIAL JURISPRUDENCE :

In 1937, R.K. Das mentioned four major principles of labour legislation

(1) Social Justice which includes abolition of servitude, freedom of association, collective
bargaining and industrial conciliation.
(2) Social Welfare which covers development of childhood, opportunity of education,
conservation of womanhood and improvement of environment.
(3) The National Economy is concerned with development of industry, control of working
conditions, regulation of wage payment and social insurance.
(4) International Solidarity has been explained in terms of the compliance of the provisions of
Conventions and Recommendations adopted by ILO.

The concept of social justice has become an integral part of industrial law. It is founded on the
basic idea of socio-economic equality. In an industrial set-up social justice implies two things:

1. Firstly, an equitable distribution of profits and other benefits accruing from

industry between the owner of the industry and workers; and
2. Secondly, providing or affording protection to the workers against harmful effects
to their health, safety and morality.
PRINCIPLES OF SOCIAL JUSTICE :

The principles of social justice implies establishment of equality in social relationships.

It aims at removing discrimination suffered by particular groups of labour. History is replete
with examples where certain groups of society or labour have been subjected to various sorts
of disabilities as compared to other groups or workers in general. The disabilities and
discrimination suffered by slaves, serfs, indentured and migrant labour, bonded labour.
Discrimination against women workers when compared to their men counterpart, in matters
relating to wages and other terms and conditions of employment, have continued till date.

The preamble to the constitution of ILO recognizes that “universal and lasting peace
can be established only if it is based upon social justice” and its Philadelphia Charter of 1944
asserts,

“All human beings, irrespective of race, creed of sex, have the right to purpose both
their material well-being and their spiritual development in conditions of freedom and dignity,
of economic security and equal opportunity.”

Similarly, the Indian Constitution has prohibited discrimination on the basis of caste, race, sex
and religion. The Constitution also abolishes ‘untouchability’ in any form and prohibits beggars
and forced labour. The Directive Principles of State Policy also direct the state to strive to
promote the welfare of the people by securing and protecting a social order in which justice –
social, economic and political, shall inform all institutions of the national life. Examples of
labour laws enacted keeping in view the principles of social justice are: Indian Slavery Act,
1843; Equal Remuneration Act, 1976; Bonded Labour System (Abolition) Act, 1976 and
Contract Labour (Regulations and Abolition) Act, 1970.

CONCEPT OF SOCIAL JUSTICE OF LABOURS IN THE CONSTITUTION OF

INDIA :

The Constitution of India has affirmed social and economic justice to all its citizens.
The fundamental rights and the directive principles of state policy enshrined in our Constitution
need a special mention in view of their supreme importance in directing and influencing the
labour legislations in the country. These provisions provide sufficient guarantee against
exploitation.
 • In this regard Article 24 of the Indian Constitution specially provides that “no
child below the age of 14 years shall be employed to work in any factory or
mine or engaged in any other hazardous employment.”
• Likewise Article 38 of the Indian Constitution says that “the state shall strive
to promote the welfare of the people by securing and protecting as effectively
as it may a social order in which justice — social, economic and political shall
inform, all the institution or the national life”.
• Article 39 of the Indian Constitution ordains that it shall be the duty of the State
to apply certain principles of social justice in making laws. Thus, it specifically
says that “the State shall, in particular, direct its policy towards securing –
A) That the citizen, men and women equally, have the right to an adequate means of
livelihood; b) that there is equal pay for equal work for both men and women;

c) that the health and strength of workers, men or women and the tender age of children, are
not abused and that citizens are not forced by economic necessity to enter avocations unsuited
to their age or strength;

d) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.”

The Constitution of India further provides that the State shall, within the limits of its economic
capacity and development, make effective provisions for securing the right to work, to
education and to public assistance in case of unemployment, old age, sickness and disablement,
etc.

● Article 42 again directs the State that it shall make provision for securing just and
humane conditions of work and for maternity relief. The State shall also endeavour to secure,
by suitable legislation or economic organization or in any other way, to all workers,
agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent
standard of life and full enjoyment of leisure etc.

● Article 43 of the Indian Constitution provides that the State shall take steps, by suitable
legislation or in any other way, to secure the participation of workers in the management of
undertakings, establishments or other organizations engaged in any industry. In India, labour
laws have been codified in consonance with the above principles of state policy.
4.HOW JUSTICE IS DELIVERED (ROLE OF TRIPARTISM AND SOCIAL
DIALOGUE) :

Social justice is the bedrock of the International Labour Organization, (ILO) which was
founded on the premise that “universal and lasting peace can be established only if it is
established on social justice.”

Maintaining some equilibrium in the desires of the tripartite representatives is

extremely important to meet the ILO’s objective, i.e moving towards the achievement of social
justice. This has always been a challenge for the Organisation. Tripartism within the ILO is
protected by the Constitution and has been somewhat More “immune” to the changes affecting
national industrial relations; changes in the balance of power between employers and workers
has inevitably affected the ILO’s work.

Considering that any multilateral organisation concerned with labour issues and social
justice must clearly be able to represent more than a single interest, and in this respect, no better
solution than tripartism has come to the fore.

Tripartism and social dialogue involving government, employers and workers can be a
key competitive advantage underpinning economic competitiveness, harmonious industrial
relations and overall national progress. A more structured framework can provide the necessary
platform to tackle problems and work together more effectively to overcome even the most
complex Challenges and issues.

Fair terms of employment, decent working conditions and economic and social
development are best achieved with the broad based efforts, collaboration and consent of
workers, employers and government. It is therefore imperative to strengthen tripartism and
social dialogue and the role of governments, employers’ and workers organizations, especially
their capacity to engage in and promote labour management cooperation and tripartite
partnership.

ILO Constitution explained the importance of social justice to that mandate, and the importance
of the creation of labour standards in the achievement of that social justice.

A commentary on the seven policy concerns in the Constitution discerned three priorities in
the ILO in terms of ‘social justice’.

● The first was the concern with work as a source of livelihood and fulfillment,
● the second was the goal of the prevention of exploitation (for example by limiting hours
of work and ‘taking measures to protect those who might be particularly vulnerable’) and

● the third was the need to protect workers against the difficulties of working in
dangerous or inadequate environments.

Social justice thus required a redistribution of power from employers to workers, but
also meant the recognition of the value of work to both workers and to the social system as a
whole. Social justice represented an idea of work quality given the social value of work.

The International Labour Organization unanimously adopted the ILO Declaration on

Social Justice for a Fair Globalization on 10 June 2008. This is the third major statement of
principles and policies adopted by the International Labour Conference since the ILO’s
Constitution of 1919. The ILO Declaration on Social Justice for a Fair Globalization adopted
by governments, workers and employers in June 2008, is designed to strengthen the ILO’s
capacity to promote the Decent Work Agenda and to forge an effective response to the
increasingly significant challenges of globalization. The Decent Work Agenda, which is based
on four pillars (employment promotion, social protection, fundamental rights at work and
social dialogue), covers many of the challenges that the Organization was already facing when
it was first created, and is intended to allow everyone to obtain decent work through the
promotion of social dialogue, social protection and employment creation, as well as respect for
international labour standards. This declaration recognises that achieving an improved and fair
outcome for all has become even more necessary in these circumstances to meet the universal
aspiration for social justice, to reach full employment, to ensure the sustainability of open
societies and the global economy, to achieve social cohesion and to combat poverty and rising
inequalities Social dialogue is a means to achieve harmonious industrial relations and achieve
the wider objective of socio-economic development. Strengthening social dialogue is a key
driver of the new DWCP, as enumerated in its three identified priorities.

IMPLEMENTATIONS IN INDIA TO ATTAIN SOCIAL JUSTICE :

India has been a founding member of the ILO since its inception in 1919. Being the
world’s largest democracy, it has consistently promoted the principles of social justice, through
many proactive initiatives, despite various labour market challenges. In December 2022, the
ILO’s constituents signed the Decent Work Country Programme (DWCP) for India 2023-27,
which ties into the United Nations’ larger mandate in the country for the next five years.

India has always been a supporter and promoter of decent work. Reduction of inequality
and providing social protection to all has been taken as a step forward for inclusive growth.
While considering the issue of transition from informality to formality, the focus must be on
the principles of decent work rather than on the process or the focus on the sector. In a recent
initiative, Government of India has undertaken an initiative to include construction and contract
workers under Universal Account Number(UAN) for portability of provident fund benefit
thereby bringing them in the formal social security cover.

Promoting universal social protection has been identified as a priority in the DWCP.
India led the way in South Asia as the government introduced the new Code on Social Security
in 2020, which envisages broader coverage of workers, including ‘gig workers’ and ‘platform
workers.’ The Code envisages ‘platform work’ as work arrangements outside traditional
employment. It acknowledges the need for social security benefits to reach all workers.
Extending social protection to these self-employed workers clearly demonstrates how India has
expanded some of the components of social justice beyond the traditional employment
relationship.

India is well positioned to unleash a new agenda for social justice through the
implementation of the new DWCP in the next five years. The ILO will also be introducing its
new Social Justice Programme set out in the vision of the ILO’s director general through the
setting up of a Global Social Justice Coalition With India taking on the leadership of G20, it is
an opportune moment to mobilise all resources in ensuring that social justice

EMPLOYEES PERSPECTIVE :

The working population, which constitutes a significant portion of the global

population, has been crucial in discharging the ILO’s objective of social justice. Social justice
is very crucial to maintaining sustainable peace as well as encouraging sustainable economic
growth. Ensuring gender equality, and protection of women’s interests in labour law is the main
improvement to improving social justice. The labour laws, in general, pave the way for good
conditions of service, and it includes welfare benefits such as retrenchment benefits,
employees’ provident fund scheme, medical benefits and compensation etc. Further, the legal
provisions that apply to women workers are: a) the abolition of night work except in some
occupations, b) provisions that prohibit work involving lifting heavy weights c) prohibition or
restriction of underground work for women in the mines, d) maternity benefits, e) provisions
for crèches, f) equal remuneration for equal work, etc.

● The Equal Remuneration Act, 1976

The Equal Remuneration Act, of 1976 is landmark legislation for women workers. This
act gives women equal work and men is a vital subject of great concern to society in general
and employees in particular. In India, in the initial stages when legislation for the protection of
women workers was hardly thought of, factory owners taking support of the backwardness and
poverty, recruited women on a large scale at lower wages and made them work under inhuman
conditions. The International Labour Organization (ILO) has evolved several conventions
which provide protection to employed women. In Article 39, The principle of ILO has been
integrated with the constitution of India, which directs the states to secure equal wages for
equal work for both men and women. To give effect to this constitutional provision the
parliament enacted the Equal Remuneration Act, 1975. Under this act, there is no
discrimination is permissible in recruitment and service conditions except where employment
of women is illegal or restricted by the law. The situation regarding enforcement of the
provisions of this law is regularly supervised by the Central Ministry of Labour and the Central
Advisory Committee.

● The Contract Labour (Regulation and Abolition) Act ,1970

The Contract Labour Act, 1970 was enacted in 1970 in order to regulate the
employment of contract labour and make way for its gradual abolition. Under this Act, it
applies to every establishment employing 20 or more women workers. It is applicable to all
establishments that offer work for 120 days in a year and 60 days in case of seasonal nature of
work. This Act provides for the regulation of conditions of work, payment of wages and other
amenities relating to welfare and health of workers. The provisions of this Act are a part of the
Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act,
1979.

● The Minimum Wages Act, 1948 :

 The minimum wages Act, of 1948 was enacted for the welfare of labours. This Act has
been enacted to secure the welfare of the workers in a competitive market by providing for a
minimum limit of income in certain employments. The Act provides for fixation by the central
government of minimum wages for employments detailed in the schedule of the Act and carried
on by or under the authority of the central government, by railway administrative or in relation
to a mine, oilfield or any corporation established by a Central Act, and by the state government
for other employments covered by the schedule of the Act.

● The Bonded Labour System (Abolition) Act, 1976 :

This Act came as a rescuing chevalier for the labourers who were coerced to work on
bonds. This Act was a great milestone in abolishing the age-old system of bonded labour which
was fast catching the society like a forest fire. The provisions of this Act uphold the dignity
and solemnity of bonded labourers and also restore their property. The bonded labour stand
discharged from every obligation to provide any form of bonded labour. The Act yielded every
agreement/ custom void wherein bonded labour existed. The Act also freed any person who
was detained in civil prison in pursuance of a bonded debt. As per the Act, once a bonded
labour is freed, he cannot be evicted from the homestead. The Act has made the offence of
practising Bonded Labour punishable, with imprisonment of up to 3 years and a fine up to two
thousand rupees for any person compelling another individual to engage in bonded labour.
Offences under this Act are cognizable as well as bailable.

JUDICIAL DECISIONS AND INTERPRETATIONS :

Rashtriya Mills Mazdoor Sangh vs. Appollo Mills Ltd. (1960-II LLJ. 263)

In this case the Supreme Court held , that social justice is not based on contractual
relations and is not to be enforced on the principles of contract of service. It is something
outside these principles, and is invoked to do justice without a contract to back it.

J. K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. Labour Appellate Tribunal (1963-II LLJ
436),

In this case the Court assigned a more broader and positive role to the concept of social
justice in industrial adjudication in these words: “The concept of social justice is not narrow,
or onesided or pedantic, and is not confined to industrial adjudication alone. Its sweep is
comprehensive. It is founded on the basic ideal of socio-economic equality and its aim is to
assist the removal of socio-economic disparities and inequalities, ... nevertheless, in dealing
with industrial matters, it does not adopt a doctrinaire approach and refuses to yield blindly to
abstract notions, but adopts a realistic and pragmatic approach. It, therefore, endeavours to
resolve the competing claims of employers and employees by finding a solution which is just
and fair to both parties with the object of establishing harmony between capital and labour, and
good relationship.

Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. Vs. The Management (1973-I LLJ 278) :

In this case the Supreme Court held that in industrial adjudication the notion of social justice
may, to a certain extent, be taken into consideration while dealing with contractual obligations
or matters like bonus, wages, gratuity, etc

5.REGISTRATION OF CONVENTIONS WITH UNO:

Article 20 of the ILO Constitution provides for the Registration of Conventions with the United
Nations. It states that,

“ Any Convention so ratified shall be communicated by the Director-General of the

International Labour Office to the Secretary-General of the United Nations for registration in
accordance with the provisions of article 102 of the Charter of the United Nations but shall
only be binding upon the Members which ratify it”

Under Chapter XVI, Charter of United Nations : Miscellaneous Provisions , Article 102 states
that :

1. Every treaty and every international agreement entered into by any Member of the
United Nations after the present Charter comes into force shall as soon as possible be
registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in
accordance with the provisions of paragraph 1 of this Article may invoke that treaty or
agreement before any organ of the United Nations.

The purpose of Article 102 of the Charter of the United Nations is to avoid secret diplomacy
by ensuring the publication of all treaties and international agreements. Paragraph 2 of Article
102 provides a sanction for failure to discharge the obligation to register under paragraph 1.
The sanction provides that no party to a treaty or an international agreement which has not been
registered, may invoke that treaty or agreement before any organ of the United Nations.
 MODULE 8

ROLE OF INTERNATIONAL COURT OF JUSTICE

COMPILED BY – J. SHERLY, D. KRITHIKAA

SYNOPSIS

• INTRODUCTION
• HISTORY OF INTERNATIONAL ARBITRATION
• THE INTERNATIONAL COURT OF JUSTICE
• COMPOSITION OF ICJ
• JURISDICTION OF ICJ
• LIMITATIONS OF ICJ
• SUPERVISORY MECHANISMS
• ROLE OF ICJ IN ILO
• CONCLUSION
INTRODUCTION:

The ICJ is one of the six principal organs of the United Nations. Its seat is at the Peace Palace
in The Hague (Netherlands). Notably, it is the only UN principal organ not situated in New
York. The chief judicial organ of the UN, it is also sometimes known as the World Court.
Established by the UN Charter in 1945, it began work in 1946 when it replaced the Permanent
Court of International Justice which had functioned in the Peace Palace since 1922. All the
193 member states of the UN are automatically parties to the Court. Those nations that are
not members of the UN may become parties to the Court’s statute with the help of the Article
93 procedure. The Court’s role is to settle, in accordance with international law, legal disputes
submitted to it by States and to give advisory opinions on legal questions referred to it by
authorized United Nations organs and specialized agencies. It settles legal disputes between
States and gives advisory opinions in accordance with international law, on legal questions
which are referred to it by authorized United Nations organs and specialized agencies. The
United Nations Security Council (UNSC) can enforce ICJ judgements as per the UN Charter.
However, the permanent members of the UNSC can veto against any such ruling. The official
languages of the ICJ are English and French. It’s current President is Joan E. Donoghue.

BACKGROUND:

Article 33 of the United Nations Charter lists the negotiation, enquiry, mediation etc. methods
for the pacific settlement of disputes between States. Some of these methods involve the
services of third parties.

Historically, mediation and arbitration preceded judicial settlement. The former was known
in ancient India and the Islamic world, whilst numerous examples of the latter can be found
in ancient Greece, in China, among the Arabian tribes, in maritime customary law in medieval
Europe, and in Papal practice.
HISTORY OF INTERNATIONAL ARBITRATION:

The first phase is generally recognized as dating back from the so-called Jay Treaty of 1794
between the United States of America and Great Britain.

The Alabama Claims arbitration in 1872 between the United Kingdom and the United States
marked the start of a second, even more decisive, phase.

The Hague Peace Conference of 1899, convened on the initiative of the Russian Czar Nicholas
II, marked the beginning of a third phase in the modern history of international arbitration.

With respect to arbitration, the 1899 Convention provided for the creation of permanent
machinery, known as the Permanent Court of Arbitration, established in 1900 and began
operating in 1902.

The Convention also created a permanent Bureau, located in The Hague, with functions
corresponding to those of a court registry or secretariat, and laid down a set of rules of
procedure to govern the conduct of arbitrations.

Various plans and proposals submitted between 1911 and 1919, both by national and
international bodies and by governments, for the establishment of an international judicial
tribunal, which culminated in the creation of the Permanent Court of International Justice
(PCIJ) as an integral part of the new international system set up after the end of the First
World War.

In 1943, China, the USSR, the United Kingdom and the United States issued a joint declaration
recognizing the necessity “of establishing at the earliest practicable date a general
international organization, based on the principle of the sovereign equality of all peace-loving
States, and open to membership by all such States, large and small, for the maintenance of
international peace and security”.

Subsequently, G.H. Hackworth (United States) committee was entrusted with preparing a
draft Statute for the future international court of justice in 1945.

The San Francisco Conference while keeping committee recommendations in mind decided
against compulsory jurisdiction and in favour of the creation of an entirely new court, which
would be a principal organ of the United Nations, on the same footing as the General
Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council and
the Secretariat.

The PCIJ met for the last time in October 1945 and resolved to transfer its archives and effects
to the new International Court of Justice, which, like its predecessor, was to have its seat at
the Peace Palace.

In April 1946, the PCIJ was formally dissolved, and the International Court of Justice, meeting
for the first time, elected as its President Judge José Gustavo Guerrero (El Salvador), the last
President of the PCIJ.

COMPOSITION :

The ICJ is composed of 15 judges. The judges have a tenure of nine years each. They are
elected independently by the United Nations General Assembly and the Security Council. The
candidate should get an absolute majority in both the UNGA and the UNSC to be elected. It is
assisted by a Registry, its administrative organ. Its official languages are English and French.
No two judges can have the same nationality in the ICJ. Elections are held every three years
for one-third of the seats, and retiring judges may be re-elected. The members of the ICJ do
not represent their governments but are independent magistrates. The judges must possess
the qualifications required in their respective countries for appointment to the highest judicial
offices, or be jurists of recognized competence in international law.

The judges are distributed as per the regions:

- 3 from Africa
- 2 from Latin America and the Caribbean
- 3 from Asia
- 5 from Western Europe and other states
- 2 from Eastern Europe

Among the 15 judges, there is a President, a Vice President and a Registrar.

Every State government party to the Charter designates a group that proposes candidates for
the office of ICJ judges.

JURISDICTION OF ICJ:

The ICJ has two types of jurisdictions:

1. Contentious cases

ICJ, in accordance with international law, settles disputes of legal nature that are submitted
to it by states. Countries should apply and only then appear before the ICJ. International
organisations, other authorities, and private individuals are not entitled to institute
proceedings before the ICJ. The Court can only deal with a dispute when the States concerned
have recognized its jurisdiction.

The judgment is final, binding on the parties to the case and without an appeal.

2. Advisory opinions

The advisory procedure is available to five UN Organs, fifteen Specialized Agencies, and one
Related Organisation. Despite having no binding force, the Court’s advisory opinions
nevertheless, carry great legal weight and moral authority and thus help in the development
and clarification of international laws. There is also a distinction between mainline and
incidental jurisdictions.

Incidental jurisdiction relates to a series of miscellaneous and interlocutory matters; for

example, the power of the Court to decide a dispute as to its own jurisdiction in a given case;
its general authority to control the proceedings; its ability to deal with interim measures of
protection; and the discontinuance of a case.

Mainline jurisdiction, on the other hand, concerns the power of the Court to render a binding
decision on the substance and merits of a case placed before it.
LIMITATIONS OF ICJ:

ICJ suffers from certain limitations, these are mainly structural, circumstantial and related to
the material resources made available to the Court. They are as follows :

1. It has no jurisdiction to try individuals accused of war crimes or crimes against

humanity. As it is not a criminal court, it does not have a prosecutor able to initiate
proceedings.

2. The ICJ is not an apex court to which national courts can turn to. It is also not a court
of last resort for people. It also does not act like an appeal court for international
tribunals, however, it can make a ruling on the validity of the arbitration awards.

3. The ICJ cannot suo moto take up a case. It can only hear cases or disputes when
requested to do so by States. It can also not investigate and rule on acts of States.

4. It differs from the Courts which deal with allegations of violations of the human rights
conventions under which they were set up, as well as applications from States at which
courts can entertain applications from individuals, that is not possible for the
International Court of Justice.

5. The jurisdiction of the International Court of Justice is general and thereby differs from
that of specialist international tribunals, such as the International Tribunal for the Law
of the Sea (ITLOS).

6. The Court is not a Supreme Court to which national courts can turn; it does not act as
a court of last resort for individuals. Nor is it an appeal court for any international
tribunal. It can, however, rule on the validity of arbitral awards.

7. The Court can only hear a dispute when requested to do so by one or more States. It
cannot deal with a dispute on its own initiative. Neither is it permitted, under its
Statute, to investigate and rule on acts of sovereign States as it chooses.

8. The ICJ only has jurisdiction based on consent, not compulsory jurisdiction.
 9. It does not enjoy a full separation of powers, with permanent members of the Security
Council being able to veto enforcement of cases, even those to which they consented
to be bound.

SUPERVISORY MECHANISMS:

ICJ acts as a world court with two fold jurisdiction i.e. legal disputes between States submitted
to it by them (contentious cases) and requests for advisory opinions on legal questions
referred to it by United Nations organs and specialized agencies (advisory proceedings). Only
States which are members of the United Nations and which have become parties to the
Statute of the Court or which have accepted its jurisdiction under certain conditions, are
parties to contentious cases. States have no permanent representatives accredited to the
Court. They normally communicate with the Registrar through their Minister for Foreign
Affairs or their ambassador accredited to the Netherlands. When they are parties to a case
before the Court they are represented by an agent. Since international relations are at stake,
the agent is also as it were the head of a special diplomatic mission with powers to commit a
sovereign State.

The judgment is final, binding on the parties to a case and without appeal (at the most it may
be subject to interpretation or, upon the discovery of a new fact, revision). By signing the
Charter, a Member State of the United Nations undertakes to comply with the decision of the
Court in any case to which it is a party. A State which considers that the other side has failed
to perform the obligations incumbent upon it under a judgment rendered by the Court may
bring the matter before the Security Council, which is empowered to recommend or decide
upon measures to be taken to give effect to the judgment. The procedure described above is
the normal procedure. However, the course of the proceedings may be modified by incidental
proceedings. ICJ discharges its duties as a full court but, at the request of the parties, it may
also establish ad hoc chambers to examine specific cases. Advisory proceedings before the
Court are only open to five organs of the United Nations and 16 specialized agencies of the
United Nations family or affiliated organizations. Opinions provided by the court in advisory
proceedings are essentially advisory and not binding.

WORKING OF INTERNATIONAL COURT OF JUSTICE:

The Court may entertain two types of cases: legal disputes between States submitted to it by
them (contentious cases) and requests for advisory opinions on legal questions referred to it
by United Nations organs and specialized agencies (advisory proceedings).

Contentious cases:

Only States (States Members of the United Nations and other States which have become
parties to the Statute of the Court or which have accepted its jurisdiction under certain
conditions) may be parties to contentious cases.

The Court is competent to entertain a dispute only if the States concerned have accepted its
jurisdiction in one or more of the following ways:

• by entering into a special agreement to submit the dispute to the Court;

• by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty
containing a provision whereby, in the event of a dispute of a given type or
disagreement over the interpretation or application of the treaty, one of them may
refer the dispute to the Court;

• through the reciprocal effect of declarations made by them under the Statute,
whereby each has accepted the jurisdiction of the Court as compulsory in the event of
a dispute with another State having made a similar declaration. A number of these
declarations, which must be deposited with the United Nations Secretary-General,
contain reservations excluding certain categories of dispute.

States have no permanent representatives accredited to the Court. They normally

communicate with the Registrar through their Minister for Foreign Affairs or their
ambassador accredited to the Netherlands. When they are parties to a case before the Court
they are represented by an agent. An agent plays the same role, and has the same rights and
obligations, as a solicitor or avoué in a national court. However, since international relations
are at stake, the agent is also as it were the head of a special diplomatic mission with powers
to commit a sovereign State. He/she receives communications from the Registrar concerning
the case and forwards all correspondence and pleadings, duly signed or certified, to him. In
public hearings the agent opens the argument on behalf of the government he/she represents
and lodges the submissions. In general, whenever a formal act is to be done by the
government represented, it is done by the agent. Agents are sometimes assisted by co-agents,
deputy agents or assistant agents and always have counsel or advocates, whose work they
co-ordinate, to assist them in the preparation of the pleadings and the delivery of oral
argument. Since there is no special International Court of Justice Bar, there are no conditions
that have to be fulfilled by counsel or advocates to enjoy the right of pleading before it, the
only exception being that they must have been appointed by a government to do so.

Proceedings may be instituted in one of two ways:

• Through the notification of a special agreement: this document, which is bilateral in

character, can be lodged with the Court by either or both of the States parties to the
proceedings. A special agreement must indicate the subject of the dispute and the
parties thereto. Since there is neither an “applicant” State nor a “respondent” State,
in the Court’s publications their names are separated by an oblique stroke at the end
of the official title of the case, e.g., Benin/Niger.

• By means of an application: the application, which is unilateral in character, is

submitted by an applicant State against a respondent State. It is intended for
communication to the latter State and the Rules of Court contain stricter requirements
with regard to its content. In addition to the name of the party against which the claim
is brought and the subject of the dispute, the applicant State must, as far as possible,
indicate briefly on what basis - a treaty or a declaration of acceptance of compulsory
jurisdiction - it claims that the Court has jurisdiction, and must succinctly state the
facts and grounds on which its claim is based. At the end of the official title of the case
the names of the two parties are separated by the abbreviation v. (for the Latin
versus), e.g., Nicaragua v. Colombia.
The date of the institution of proceedings, which is that of the receipt by the Registrar of the
special agreement or application, marks the opening of proceedings before the Court.
Contentious proceedings include a written phase, in which the parties file and exchange
pleadings containing a detailed statement of the points of fact and of law on which each party
relies, and an oral phase consisting of public hearings at which agents and counsel address
the Court. As the Court has two official languages (English and French), everything written or
said in one language is translated into the other. The written pleadings are not made available
to the press and public until the opening of the oral proceedings, and only then if the parties
have no objection.

After the oral proceedings the Court deliberates in camera and then delivers its judgment at
a public sitting. The judgment is final, binding on the parties to a case and without appeal (at
the most it may be subject to interpretation or, upon the discovery of a new fact, revision).
Any judge wishing to do so may append an opinion to the judgment.

By signing the Charter, a Member State of the United Nations undertakes to comply with the
decision of the Court in any case to which it is a party. Since, furthermore, a case can only be
submitted to the Court and decided by it if the parties have in one way or another consented
to its jurisdiction over the case, it is rare for a decision not to be implemented. A State which
considers that the other side has failed to perform the obligations incumbent upon it under a
judgment rendered by the Court may bring the matter before the Security Council, which is
empowered to recommend or decide upon measures to be taken to give effect to the
judgment.

The procedure described above is the normal procedure. However, the course of the
proceedings may be modified by incidental proceedings. The most common incidental
proceedings are preliminary objections, which are raised to challenge the competence of the
Court to decide on the merits of the case (the respondent State may contend, for example,
that the Court lacks jurisdiction or that the application is inadmissible). The matter is one for
the Court itself to decide. Then there are provisional measures, interim measures which can
be requested by the applicant State if it considers that the rights that form the subject of its
application are in immediate danger. A third possibility is that a State may request permission
to intervene in a dispute involving other States if it considers that it has an interest of a legal
naturein the case, which might be affected by the decision made. The Statute also makes
provision for instances when a respondent State fails to appear before the Court, either
because it totally rejects the Court’s jurisdiction or for any other reason. Failure by one party
to appear does not prevent the proceedings from taking their course, although the Court must
first satisfy itself that it has jurisdiction. Finally, should the Court find that parties to separate
proceedings are submitting the same arguments and submissions against a common
opponent in relation to the same issue, it may order the proceedings to be joined.

The Court discharges its duties as a full court but, at the request of the parties, it may also
establish ad hoc chambers to examine specific cases. A Chamber of Summary Procedure is
elected every year by the Court in accordance with its Statute.

The sources of law that the Court must apply are: international treaties and conventions in
force; international custom; the general principles of law; judicial decisions; and the teachings
of the most highly qualified publicists. Moreover, if the parties agree, the Court can decide a
case ex aequo et bono, i.e., without confining itself to existing rules of international law.

A case may be brought to a conclusion at any stage of the proceedings by a settlement

between the parties or by discontinuance. In case of the latter, an applicant State may at any
time inform the Court that it does not wish to continue the proceedings, or the two parties
may declare that they have agreed to withdraw the case. The Court then removes the case
from its List.

Advisory proceedings:

Advisory proceedings before the Court are only open to five organs of the United Nations and
16 specialized agencies of the United Nations family or affiliated organizations.

The United Nations General Assembly and Security Council may request advisory opinions on
“any legal question”. Other United Nations organs and specialized agencies which have been
authorized to seek advisory opinions can only do so with respect to “legal questions arising
within the scope of their activities”.
When it receives a request for an advisory opinion the Court must assemble all the facts, and
is thus empowered to hold written and oral proceedings, similar to those in contentious cases.
In theory, the Court may do without such proceedings, but it has never dispensed with them
entirely.

A few days after the request has been filed, the Court draws up a list of the States and
international organizations that are likely to be able to furnish information on the question
before the Court. Such States are not in the same position as parties to contentious
proceedings: their representatives before the Court are not known as agents, and their
participation in the advisory proceedings does not render the Court’s opinion binding upon
them. Usually the States listed are the member States of the organization requesting the
opinion. Any State not consulted by the Court may ask to be.

It is rare, however, for the ICJ to allow international organizations other than the one that
requested the opinion to participate in advisory proceedings. The only non-governmental
international organizations that has ever been authorized by the ICJ to furnish information
did not in the end do so (International Status of South West Africa). The Court has rejected all
such requests by private parties.

The written proceedings are shorter than in contentious proceedings between States, and the
rules governing them are relatively flexible. Participants may file written statements, which
sometimes form the object of written comments by other participants. The written
statements and comments are regarded as confidential, but are generally made available to
the public at the beginning of the oral proceedings. States are then usually invited to make
oral statements at public sittings.

Advisory proceedings conclude with the delivery of the advisory opinion at a public sitting.

Such opinions are essemtially advisory; in other words, unlike the Court’s judgments, they are
not binding. The requesting organ, agency or organization remains free to give effect to the
opinion as it sees fit, or not to do so at all. However, certain instruments or regulations provide
that an advisory opinion by the Court does have binding force (e.g., the conventions on the
privileges and immunities of the United Nations).
Nevertheless, the Court's advisory opinions are associated with its authority and prestige, and
a decision by the organ or agency concerned to endorses an opinion is as it were sanctioned
by international law.

ROLE OF ICJ IN ILO:

The International Court of Justice (ICJ) is by virtue of Article 37(1) of the ILO Constitution the
only body competent to give authoritative interpretations of ILO Conventions.

Article 37(2) provides for the establishment of an in-house tribunal for the expeditious
settlement of disputes relating to the interpretation of Conventions based on the
understanding that not all questions of interpretation are highly controversial or complex to
merit referral to the ICJ.

In its early years, the ILO had recourse to the advisory function of the Permanent Court of
International Justice (PCIJ) on six occasions between 1922 and 1932. Five of the six advisory
opinions concerned the interpretation of the Constitution and only one advisory
opinion referred to the interpretation of an international labour Convention, namely the
Night Work (Women) Convention, 1919 (No.4 ). To date, no use has been made of the
advisory jurisdiction of the ICJ while the idea of setting up an internal tribunal for the rapid
settlement of interpretation disputes has never been followed up beyond the level of
preliminary studies.

In practice, ‘interpretative functions’ have been exercised by the Office and the supervisory
bodies of the Organization. In the case of informal opinions, the Office views are solicited by
a government or an employers’ or workers’ organization and take the form of administrative
clarifications whereas in the case of the supervisory bodies, such as the Committee of Experts,
Commissions of Inquiry or the Committee on Freedom of Association, interpretation is
incidental to the exercise of supervisory responsibilities. Yet, the practical explanations of the
Office or the incidental views of the supervisory bodies are at best working solutions to settle
day-to-day difficulties of interpretation but do not constitute authoritative responses to
controversies concerning the meaning and scope of the provisions of a Convention.
Under article 31 of the ILO Constitution, any decision of the ICJ regarding a complaint which
has been referred to it by the governments concerned shall be final. In practice, no complaint
has ever been referred to it.

Under article 31 of the ILO Constitution, any decision of the ICJ regarding a complaint which
has been referred to it by the governments concerned shall be final. In practice, no complaint
has ever been referred to it.

When ratifying member States or delegates to the International Labour Conference file a
complaint with the Office alleging that a member State has not observed a ratified
Convention.

1. The complaint alleging non-observance is filed

2. The Office receives the complaint by member States

3. The Governing Body may refer the complaint to a COI

4. The COI examines the complaint

5. The CFA examines the complaint

6. The COI report is published and actions are required

7. The ICJ decides

8. The Governing Body may recommend action to the International Labour Conference

9. Follow up of the complaint through regular supervision

LATEST NEWS ON INDIA WITH REGARD TO THE INTERNATIONAL COURT OF

JUSTICE:

Dalveer Bhandari is an Indian member of the International Court of Justice (ICJ) and is a former
judge of the Indian Supreme Court. On November 21, 2017 he won the elections of ICJ
For the elections, Bhandari was locked neck-to-neck with Britain’s Christopher Greenwood to
win a seat at the International Court of Justice.

As per the initial reports itself, Bhandari was supported by nearly two-thirds of the total
193 UN members. Greenwood, who had already served one nine-year term in ICJ, was trailing
behind more than 50 votes in the General Assembly.

Bhandari's victory at the elections has definitely added on to the backing that India enjoys in
the UN General Assembly.

CONCLUSION:

The International Court of Justice is endowed with both a privileged institutional status and
procedural instruments whose potential is frequently underestimated. The International
Court of Justice is a component, not only of the machinery for the peaceful settlement of
disputes created by the Charter but also of the general system for the maintenance of
international peace and security it established. The Court’s contribution to the institutional
law of the United Nations was threefold. Its jurisprudence had helped to consolidate the
Organization’s role and place in the international legal order by clarifying its legal status as an
international organization and the scope of powers with which it was entrusted. Its decisions
had also shed light, within the institution itself, on the functioning and responsibilities of the
Organization’s principal organs and on those functions’ limits. Moreover, the Court had
pronounced itself in texts adopted by the General Assembly, thereby strengthening the
cooperation in the promotion and development of international peace. The Court had
recalled that, although the Security Council had primary responsibility for the maintenance of
international peace and security under Article 24 of the Charter, its responsibility was not
exclusive. Turning to "Crimes against humanity", while the Rome Statute regulated "vertical
relationships" between the International Criminal Court and its States Parties, it did not
prescribe any obligations regarding adoption of national laws on such crimes or inter-State
cooperation.
REFERENCE:

1. https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---
declaration/documents/publication/wcms_106143.pdf
2. https://www.icj-cij.org/how-the-court-works
3. https://www.ilo.org/global/about-the-ilo/how-the-ilo-
works/organigramme/jur/legal-instruments/WCMS_711647/lang--
en/index.htm
 ENFORCEMENT AND PUBLIC INTEREST LITIGATION
SUBMITTED BY

(MAHALAKSHMI, HARINI, NAVEEN, SARAVANAKUMAR)

INTRODUCTION
PIL has not been defined in any Indian statute. However, Courts have interpreted and defined
PIL. The Hon’ble Supreme Court of India has, in the case of Janata Dal v.H.S.Chaudhary,
[(AIR 1993 SC 892) (see here)], held that lexically, the expression ‘PIL’ means a legal
action started in a court of law for the enforcement of public/general interest where the public
or a particular class of the public some interest(including pecuniary interest) that affects their
legal rights or liabilities.1

PILs are considered to be the most effective as well as the most commonly used judicial tool
to safeguard the environment due to their many advantages including but not limited to
speedy results, nominal court fees, relaxed procedural rules and the wide variety of
investigative techniques available to courts like special committees.

PUBLIC INTEREST LITIGATION

In the Indian context, ‘public interest litigation’ refers to cases in which the Supreme Court
or a High Court allows volunteer lawyers or citizen petitioners to bring a case on behalf of
some victimized group without sufficient means or access to legal services. The procedure is
quite simple. The Supreme Court must simply be approached (this can be through a letter,
postcard, newspaper clippings, etc.) with some sort of injustice. Cases are financed
completely by legal aid organizations and public interest advocates. In the past, beneficiary
groups have included prisoners, injured farm workers, the homeless, the Bhopal Union
Carbide disaster survivors, victims of police brutality, residents of women’s shelters, and
many others. Frequently, it is the court that actively invites (or induces) the cases to be
brought to court, and in most cases there is no active involvement by the victims or would-be
beneficiaries. Others have also engaged in initiating these cases, including professors,
journalists, lawyers, and other citizen activists. The Supreme Court takes on the cases that
fall under its jurisdiction; this may often come down to whether a case can be seen as dealing
with a constitutional issue, very broadly interpreted.

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The Constitution of India promises socio-economic development for all Indians. This has
clearly been a difficult pledge to keep. However, over the past few decades, the Supreme
Court of India has used its distinctive brand of public interest litigation (PIL) as a means to
try and engage with some crucial developmental issues; often dealing with cases relating to
women’s rights, poverty, indigenous rights, labour, and the environment. Some of India’s
most severely disadvantaged workers are engaged in bonded labour and child labour, and
their concerns are often lost in the courts. Findings from this study of PIL, however, suggest
that though India’s lower courts have not been very friendly to poor workers, the Supreme
Court actually has. Thus, PIL in the Supreme Court is used frequently by trade unionists and
non-governmental organizations (NGOs) concerned with workers’ rights in order to procure
fair rulings and positive changes. The threat that globalization carries for the worker, along
with the fear that the national government has gone pro-globalization in its concerns, have
also been a catalyst for greater use of the Court by these organizations. Child labourers and
bonded labourers are some of the most disadvantaged workers in India with, historically,
possibly the least amount of access to the legal system. That is why the increased access
provided by PIL has been especially important for them. Several organizations have now
filed PIL petitions on behalf of these workers.

The recommendation for PIL came immediately following the 2-year period (1975–1977) of
Emergency Rule and the suspension of democracy by Prime Minister Indira Gandhi, and has
been seen as a direct response to the legitimation crisis suffered by the Indian Government in
the post-emergency period. However, Rajeev Dhavan argues that this type of thinking was
the fruit of an overdue ‘alliance of protest and thinking’ among India’s disadvantaged groups
and its growing bevy of middle-class intellectuals.1 Whatever the impetus, PIL was in action
by the late 1970s. During this time, the Court was criticized for being far too open and
accessible. In the initial stages of PIL, the court listened to cases brought by almost anyone
complaining of any injustice. That has now changed, but what came as a result of that trend
was the liberalization of locus standi (rules of standing).

HISTORY OF PUBLIC INTEREST LITIGATION

The Indian PIL is the improved version of PIL of U.S.A. According to Ford Foundation of
U.S.A., Public interest law is the name that has recently been given to efforts that provide
legal representation to previously unrepresented groups and interests. Such efforts have been
undertaken in the recognition that ordinary marketplace for legal services fails to provide
such services to significant segments of the population and to significant interests.
 Such groups and interests include the proper environmentalists, consumers, racial and ethnic
minorities and others. The emergency period (1975-1977) witnessed colonial nature of the
Indian legal system. During emergency state repression and governmental lawlessness was
widespread. Thousands of innocent people including political opponents were sent to jails
and there was complete deprivation of civil and political rights. The post emergency period
provided an occasion for the judges of the Supreme Court to openly disregard the
impediments of Anglo-Saxon procedure in providing access to justice to the poor.

Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the
interest of that nebulous entity: the public in general. Prior to 1980s, only the aggrieved party
could personally knock the doors of justice and seek remedy for his grievance and any other
person who was not personally affected could not knock the doors of justice as a proxy for
the victim or the aggrieved party. In other words, only the affected parties had the locus
standi (standing required in law) to file a case and continue the litigation and the non affected
persons had no locus standi to do so. And as a result, there was hardly any link between the
rights guaranteed by the Constitution of Indian Union and the laws made by the legislature
on the one hand and the vast majority of illiterate citizens on the other. The traditional view
in regard to locus standi in Writ jurisdiction has been that only such persons who: a) Has
suffered a legal injury by reason of violation of his legal right or legally protected interest; or
b) Is likely to suffer a legal injury by reason of violation of his legal right or legally protected
interest. Thus before a person acquired locus standi he had to have a personal or individual
right which was violated or threatened to be violated. He should have been a person
aggrieved in the sense that he had suffered or was likely to suffer from prejudice, pecuniary
or otherwise.2

However, all these scenario gradually changed when the post emergency Supreme Court
tackled the problem of access to justice by people through radical changes and alterations
made in the requirements of locus standi and of party aggrieved. The splendid efforts of
Justice P N Bhagwati and Justice V R Krishna Iyer were instrumental of this juristic
revolution of eighties to convert the Apex Court of India into a Supreme Court for all
Indians. Justice V. R. Krishna Iyer and P. N. Bhagwati recognised the possibility of
providing access to justice to the poor and the exploited people by relaxing the rules of
standing.

2
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litigation/#:~:text=It%20means%20lawsuits%20filed%20in,Interest%20Litigation%20in%20the%20Court.
In the post-emergency period when the political situations had changed, investigative
journalism also began to expose gory scenes of governmental lawlessness, repression,
custodial violence, drawing attention of lawyers, judges, and social activists. PIL emerged as
a result of an informal nexus of pro-active judges, media persons and social activists. This
trend shows starke difference between the traditional justice delivery system and the modern
informal justice system where the judiciary is performing administrative judicial role. PIL is
necessary rejection of laissez faire notions of traditional jurisprudence.

The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and
under trial prisoners. In Hussainara Khatoon v. State of Bihar, the PIL was filed by an
advocate on the basis of the news item published in the Indian Express, highlighting the
plight of thousands of undertrial prisoners languishing in various jails in Bihar. These
proceeding led to the release of more than 40,000 undertrial prisoners. Right to speedy justice
emerged as a basic fundamental right which had been denied to these prisoners. The same set
pattern was adopted in subsequent cases.

A new era of the PIL movement was heralded by Justice P.N. Bhagawati in the case of S.P.
Gupta v. Union of India. In this case it was held that any member of the public or social
action group acting bonafide can invoke the Writ Jurisdiction of the High Courts or the
Supreme Court seeking redressal against violation of a legal or constitutional rights of
persons who due to social or economic or any other disability cannot approach the Court. By
this judgment PIL became a potent weapon for the enforcement of public duties where
executed in action or misdeed resulted in public injury. And as a result any citizen of India or
any consumer groups or social action groups can now approach the apex court of the country
seeking legal remedies in all cases where the interests of general public or a section of public
are at stake.3

PROCEDURE TO FILE PIL IN INDIA

Any Indian citizen or organisation can move the court for a public interest/cause by filing a
petition:

 In the SC under Article 32

 In the High Courts under Article 226

3
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\The court can treat a letter as a writ petition and take action on it. The court has to be
satisfied that the writ petition complies with the following: the letter is addressed by the
aggrieved person or a public-spirited individual or a social action group for the enforcement
of legal or constitutional rights to any person who, upon poverty or disability, are not able to
approach the court for redress. The court can also take action on the basis of newspaper
reports if it is satisfied with the case.

SIGNIFICANCE OF PUBLIC INTEREST LITIGATION IN INDIA

The original purpose of PILs has been to make justice accessible to the poor and the
marginalized.

 It is an important tool to make human rights reach those who have been denied rights.
 It democratizes the access of justice to all. Any citizen/agency who is capable can file
petitions on behalf of those who cannot or do not have the means to do so.
 It helps in judicially monitoring state institutions like prisons, asylums, protective
homes, etc.
 It is an important tool in judicial review.

LAW GOVERNING PIL INDIA

 Relaxed rule of locus standi - PILs can be filed by any person for the welfare of
others who are disadvantaged and are thus unable to approach the courts
themselves. Thus, the general rule of locus standi has been relaxed in cases of PILs
to protect and safeguard the interests and rights of these disadvantaged people.

 Relaxed procedural rules - Courts have treated even a letter or a telegram as a PIL
as in the case of Rural Litigation & Entitlement Kendra, Dehradun vs. State of Uttar
Pradesh. Even the law regarding pleadings has been relaxed by the courts in cases
of PILs.

 Intervention by the courts - Courts has also highlighted the fact that Article 14 &
21 of the Constitution of India and the International Conventions on Human Rights
provide for a fair and reasonable trial. Thus, Courts must intervene when injustice is
done to many.
 Question of maintainability - The Government may not be allowed to raise
questions as to the maintainability of the PIL if the court is prime facie satisfied that
there is a variation of any constitutional rights of a disadvantaged category of
people.

 Principle of Res Judicata - The principle of res judicata or any principles

analogous to it would depend on the circumstances and facts of the case and the
nature of the PIL.

 Appointment of a Commission - In special circumstances, a court may appoint a

Commission or other bodies to investigate. In the event that the Commission takes
over a public institution, the Court may direct management of it.

 PILs regarding constitutionality or validity of a statute or a statutory rule -

Ordinarily, the High Court should not entertain such a petition by way of a PIL.

 Complete Justice - Under Article 142 of the Constitution of India, the Hon’ble
Supreme Court of India has the discretionary power to pass a decree or order as
may be necessary to do complete justice. However, while high courts may pass
orders to do complete justice, they do not have powers akin to those granted to the
Hon’ble Supreme Court under Article 142.

 Misuse of PILs - Courts are extremely cautious to ensure that PILs are not misused
as the misuse of PILs would defeat the very purpose for which it was conceived i.e.
to come to the rescue of the poor and the downtrodden. The courts have, time and
again, reiterated this fact as in the case of Kushum Lata v. Union of India {[(2006)
6 SCC 180] .

However, courts have held that even if the petitioner had approached the court for
his own private interest due to his personal grievances, the court may treat it
necessary to inquire into the subject of the litigation and its state of affairs in
furtherance of public interest.
  Formulation of various concepts - In environmental law cases, the courts have
formulated and evolved several concepts including the Polluter Pays Principle, the
Precautionary Principle, the Public Trust Doctrine and Sustainable Development.4

PUBLIC INTEREST LITIGATION ON CHILD LABOUR

Several PIL cases deal with issues relating to child labour. A number of rulings stand out
when discussing how child labour has been dealt with by the Supreme Court. Rather than
going through an exhaustive list of cases and judgements, here we provide several examples
of the types of rulings made by the Supreme Court regarding child labour. In response to a
letter from a District Beedi Workers’ Union about the employment of children in beedi
factories, the Court did several things: it ordered an NGO to investigate and write a report for
the court, and then allowed the state and the manufacturers to respond and create a plan to
alleviate the problem. It then accepted a compromise between the plans created by the state
and the petitioners. The court appointed the Tamil Nadu State Legal Aid and Advice Board
to make sure the plan was implemented properly within the state for 3 years. In other cases,
the Court has fined employers and used the money to help the children themselves. In M.C.
Mehta vs. Union of India and Others, the Supreme Court intervenes in the employment of
children at hazardous electroplating units in Delhi. They send the police commissioner and
labour commissioner to investigate, and the labour commissioner is even held in contempt
for delays in the investigation. After police find the child workers, the children are removed,
and the employers are fined within a month. The money has gone to a fund for education and
healthcare for the children. The electroplating units were also prosecuted separately.

Some child labour rulings deal not only with the specific issues of the cases, but also speak to
broader issues. For instance, in a very lengthy ruling on child employment at match factories
in Sivakasi, one justice goes on to discuss the need for the eventual elimination of child
labour in the country in general. In an especially important case dealing with children who
were abducted and put to work as carpet weavers, the Court makes an important reiteration of
India’s commitment to its ratification of the Convention on the Rights of the Child, and its
acceptance of the Universal Declaration of Human Rights. It also places special emphasis on
the guarantee of education to all children in India under the age of 14.

4
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In an especially important move towards the eventual eradication of child labour, the
Supreme Court issued an order in 2001 directing all state governments to provide free cooked
lunches in all primary schools within 6 months. It has been shown that more children are
taken out of work and put in school when hot meals are provided, and that is already proving
to be the case. Since the Supreme Court order, India’s Finance Ministry has raised the
midday meal budget from $38 million to $67 million, feeding approximately 110 million
children enrolled in primary schools.5

IMPORTANT CASE RELATING TO PUBLIC INTEREST

LITIGATION

Peoples Union for Democratic Rights v. Union of India . The court now permits Public
Interest Litigation or Social Interest Litigation at the instance of Public spirited citizens for
the enforcement of constitutional & legal rights of any person or group of persons who
because of their socially or economically disadvantaged position are unable to approach court
for relief. Public interest litigation is a part of the process of participate justice and standing
in civil litigation of that pattern must have liberal reception at the judicial door steps.

In the Judges Transfer Case - Court held Public Interest Litigation can be filed by any
member of public having sufficient interest for public injury arising from violation of legal
rights so as to get judicial redress. This is absolutely necessary for maintaining Rule of law
and accelerating the balance between law and justice.

It is a settled law that when a person approaches the court of equity in exercise of
extraordinary jurisdiction, he should approach the court not only with clean hands but with
clean mind, heart and with clean objectives.

Shiram Food & Fertilizer case through Public Interest Litigation directed the Co.
Manufacturing hazardous & lethal chemical and gases posing danger to life and health of
workmen & to take all necessary safety measures before re-opening the plant.

M.C Mehta v/s Union of India - In a Public Interest Litigation brought against Ganga water
pollution so as to prevent any further pollution of Ganga water. Supreme court held that
petitioner although not a riparian owner is entitled to move the court for the enforcement of
statutory provisions , as he is the person interested in protecting the lives of the people who
make use of Ganga water.

5
Economic and Political Weekly, Vol. 39, No. 18 (May 1-7, 2004), pp. 1770-1774
Parmanand Katara v/s Union of India - Supreme Court held in the Public Interest
Litigation filed by a human right activist fighting for general public interest that it is a
paramount obligation of every member of medical profession to give medical aid to every
injured citizen as soon as possible without waiting for any procedural formalities.

Council For Environment Legal Action v/s Union of India -: Public Interest Litigation
filed by registered voluntary organisation regarding economic degradation in coastal area.
Supreme Court issued appropriate orders and directions for enforcing the laws to protect
ecology.

Supreme Court has now realised its proper role in welfare state and it is using its new
strategy for the development of a whole new corpus of law for effective and purposeful
implementation of Public Interest Litigation. One can simply approach to the Court for the
enforcement of fundamental rights by writing a letter or post card to any Judge. That
particular letters based on true facts and concept will be converted to writ petition. When
Court welcome Public Interest Litigation , its attempt is to endure observance of social and
economic programmes frame for the benefits of have-nots and the handicapped. Public
Interest Litigation has proved a boon for the common men. Public Interest Litigation has set
right a number of wrongs committed by an individual or by society. By relaxing the scope of
Public Interest Litigation, Court has brought legal aid at the doorsteps of the teeming millions
of Indians; which the executive has not been able to do despite a lot of money is being spent
on new legal aid schemes operating at the central and state level.6

Supreme Court's pivotal role in expanding the scope of Public Interest Litigation as a counter
balance to the lethargy and inefficiency of the executive is commendable.

ASPECT OF PUBLIC INTEREST LITIGATION

Remedial in Nature: Remedial nature of PIL departs from traditional locus standi rules. It
indirectly incorporated the principles enshrined in the part IV of the Constitution of India into
part III of the Constitution. By riding the aspirations of part IV into part III of the
Constitution had changeth the procedural nature of the Indian law into dynamic welfare one.
Bandhu Mukti Morcha v/s Union of India, Unnikrishnan v/s State of A.P., etc were the
obvious examples of this change in nature of judiciary.

Representative Standing: Representative standing can be seen as a creative expansion of

the well-accepted standing exception which allows a third party to file a habeas corpus
petition on the ground that the injured party cannot approach the court himself. And in this
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regard the Indian concept of PIL is much broader in relation to the American. PIL is a
modified form of class action.

Citizen standing: The doctrine of citizen standing thus marks a significant expansion of the
court's rule, from protector of individual rights to guardian of the rule of law wherever
threatened by official lawlessness.

Non-adversarial Litigation: In the words of Supreme Court in People's Union for

Democratic Rights v. Union of India, We wish to point out with all the emphasis at our
command that public interest litigation…is a totally different kind of litigation from the
ordinary traditional litigation which is essentially of an adversary character where there is a
dispute between two litigating parties, one making claim or seeking relief against the other
and that other opposing such claim or resisting such relief.7

PROTECTION OF HUMAN RIGHTS THROUGH PIL

By creating a new regime of human rights by expanding the meaning of fundamental right to
equality, life and personal liberty.

In this process, the right to speedy trial, free legal aid, dignity, means and livelihood,
education, housing, medical care, clean environment, right against torture, sexual harassment,
solitary confinement, bondage and servitude, exploitation and so on emerge as human rights.
These new re-conceptualised rights provide legal resources to activate the courts for their
enforcement through PIL.

By democratization of access to justice. This is done by relaxing the traditional rule of locus
standi. Any public spirited citizen or social action group can approach the court on behalf of
the oppressed classes. Courts attention can be drawn even by writing a letter or sending a
telegram. This has been called epistolary jurisdiction.

By fashioning new kinds of relief's under the court's writ jurisdiction. For example, the court
can award interim compensation to the victims of governmental lawlessness. This stands in
sharp contrast to the Anglo-Saxon model of adjudication where interim relief is limited to
preserving the status quo pending final decision. The grant of compensation in PIL matters
does not preclude the aggrieved person from bringing a civil suit for damages. In PIL cases
the court can fashion any relief to the victims.

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Public-Interest-Litigation.html
By judicial monitoring of State institutions such as jails, women's protective homes, juvenile
homes, mental asylums, and the like. Through judicial invigilation, the court seeks gradual
improvement in their management and administration. This has been characterized as
creeping jurisdiction in which the court takes over the administration of these institutions for
protecting human rights.

By devising new techniques of fact-finding. In most of the cases the court has appointed its
own socio-legal commissions of inquiry or has deputed its own official for investigation.
Sometimes it has taken the help of National Human Rights Commission or Central Bureau of
Investigation (CBI) or experts to inquire into human rights violations. This may be called
investigative litigation.

PUBLIC INTEREST LITIGATION AND BONDED LABOUR

Bonded labour is expressly prohibited by the Constitution of India; however, the practice
does continue.

One of the most common problems is that people who serve as bonded labourers and those
who keep them under contract usually claim that they did so without the knowledge that
bonded labour is illegal. There is no government enforcement agency that deals with bonded
labour, and there have even been cases in which members of state legislatures have been
found to have bonded labourers working for them under old contracts. They all claimed that
they thought it was lawful. PIL has been used frequently in the fight against the continuing
practice of bonded labour in India.

Various types of rulings have been handed down in PIL cases dealing with bonded labour. In
two rulings by Justice Bhagwati from 1986, a crucial distinction is made. Justice Bhagwati
finds that it is not enough to simply identify and liberate bonded labourers (a trend in
previous rulings), but that these workers also need state aid for rehabilitation. He rules that
freed bonded labourers should be provided with financial aid upon release by their state
governments as well as subsidies from the central government.24 In additional efforts to help
bonded labourers, in 1984 the Court simplifies the procedures for workers to fit under the
legal category of ‘bonded labour’ so that it is easier to apply and enforce the Bonded Labour
System (Abolition) Act, 1976.
All of the aforementioned constitutional violations are crucial in establishing why these cases
are allowed in to the Supreme Court. Without seeing bonded labour as a violation of the
Fundamental Rights (Article 32) guaranteed by the Constitution, these cases would not be
eligible to be heard as Public Interest Litigations in the Supreme Court.8

CONCLUSION

Although India has over the years enacted some relatively progressive labour laws, the
average Indian worker has not fared well. In this paper, cases that were brought to the
Supreme Court’s attention as PILs covered issues relating to two extreme violations of Indian
labour laws: child labour and bonded labour. Although child labour in general has not yet
been outlawed, child labour in hazardous situations is illegal. We have seen here that the
Supreme Court is very much in favour of the eventual abolition of child labour, but also
realizes the complexity of the issues involved in such an impoverished nation. Overnight
abolition is an impossibility, so the Court mainly provides compensation for victims of the
abuse of child labour laws, and imposes punitive fines on those who actively violate the laws
to protect child workers. The Court also actively creates policy that further limits what kinds
of environments and conditions may be considered safe for the children.

In an interview with one of the leaders of the All India Trade Union Congress, which is
affiliated with the Communist Party of India, I was told that ‘most courts [in India] make
anti-worker judgments. We can’t avoid the judicial system . . . and our Government has
fallen under the spell of globalization. So far [however], the Supreme Court has been giving
pro-worker judgments. The Supreme Court is costly, but that is why we still go there’. He
went on to say that, with the Court on their side, it makes their work seem ‘right’. The trade
unionists have also uniformly pointed out that the implementation of Supreme Court
judgements will never be fully effective, so what is really needed is the amendment of
different rules or acts. Many of them praise the work of NGOs on behalf of workers, but one
trade unionist complained of ‘publicity-seeking NGOs’ and the Bandhua Mukti Morcha
(Bonded Labour Liberation Front) in particular. After further discussion, however, even he
admitted that much of the attention garnered by these organizations had been useful to his
trade union’s agenda.

8
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I asked Swami Agnivesh, the leader of the Bandhua Mukti Morcha, what his response was to
this type of criticism. He shrugged it off, saying that of course he was leading a publicity-
seeking organization—because, without publicity, ‘nothing will ever get done’. All agreed as
well that there is no better publicity than the kind of press coverage a Supreme Court ruling
can provide. It seems that for the labour movements in India, the attention and legitimacy the
Supreme Court offers is invaluable.9

9
: Economic and Political Weekly, Vol. 39, No. 18 (May 1-7, 2004), pp. 1770-1774
 MODULE 8
LABOUR LAW AND ADMINISTRATIVE LAW

SUBMITTED BY
YAMINI S, VASANTH KUMAR, ANAND KUMAR, MAGESH

SYNOPSIS
 INTRODUCTION
 LABOUR LAW
 ADMINISTRATIVE LAW
 LABOUR ADIMINISTRATION
 HOW IS LABOUR ADMINISTRATION ORGANIZED?
 ILO AND LABOUR ADMINISTRATION
 INDIAN CONTEXT OF LABOUR ADMINISTRAION
 MACHINERIES FOR LABOUR ADMINISTRATION IN INDIA
 PROS AND CONS
 CHALLENGES FACED BY LABOUR ADMINISTRATION
 CONCLUSION

INTRODUCTION:
The term labour law and administrative law are wide connotations, hence to simplify and for
better understanding the topic has been scrutinized the topic to labour administration.in this
paper the reader will came to know about the importance and need for labour administration
it can either for ratification of convention at international or applicability of labour laws at
national level both need the effective functioning and operation of the labour administrator
who in turn at the ground level executing authority for implementation of labour laws which
either relation to conditions of labour, employment, social security or equality of opportunity
to avoid discrimination either based on sex or in wages. Hence the paper lead in way form
how the concept labour administration carried out in international perspective (ILO) to
national laws (INDIAN CONTEX) with related conventions as well as Indian labour
legislations’

LABOUR LAW:

Labour laws, also known as employment laws, are the body of laws, administrative rulings,
and precedents that address the legal rights and restrictions of working people and their
organisations. Labour laws attempt to regulate the relationships between an employer or
group of employers and their employees. This branch of law has the broadest application
because it affects more men and women than any other branch of law.
These laws generally address issues like workplace health and safety, collective bargaining,
unfair labour practices, certification of unions, labour-management relations, general
holidays, annual leave, working hours, unfair terminations, the minimum wage, layoff
procedures, severance pay and so on.

In India, the Central Government has promulgated around 44 labour-related statutes, 29 of

which have been consolidated into four new labour codes. This article summarises
some of the labour laws in India, as well as the four labour codes.

ADMINISTRATIVE LAW:

Administrative law is a branch of public law. It deals with the relationship of individuals with
the government. Administrative law is the law that governs the administrative actions.

As per Ivor Jennings- the administrative law is the law relating to administration. It
determines the organisation, powers and duties of administrative authorities. It includes law
relating to the rule-making power of the administrative bodies, the quasi-judicial function of
administrative agencies, legal liabilities of public authorities and power of the ordinary courts
to supervise administrative authorities. It governs the executive and ensures that the executive
treats the public fairly.

Hence these two connotations are wide arena, hence scrutinizing the topic to labour
administration in relation of international labour organisation and subsequently the position
of India in this parlance.

LABOUR ADMINISTRATION:

Labour administration is a wide term. It is primarily concerned with labour affairs and
administration of social policy. The meeting of experts on labour administration held in
Geneva in October, 1973 felt that to deal with the major substantive programmes of labour
administration, there should be central specialised units for each of the following:

a) Labour protection (formulation of standards relative to working conditions and terms of

employment, including wages);
b) Labour inspection;
c) Labour relations;
d) Employment of manpower, including training; and possibly
e) social security.
HOW IS LABOUR ADMINISTRATION ORGANIZED?

No specific form of organization or operation is promoted or to which precedence is given,

since ministries and/or related agencies take many forms. They should, however, cover the
main functions or fields of activity of labour administration (including an autonomous labour
inspection system) and, above all, they should be coordinated

The importance of Labour Administration The concept of labour administration contains the
principal elements of what is understood by "good governance": Participation (Social
dialogue and tripartism), Credibility (Fair and adequate policies, laws and rules which are
known and applied uniformly) Transparency (Decision-making, information and government
services available for all) Responsibility (An open organization which is accountable for its
mandates and activities) Flexibility (Dynamism to adapt to changes).
Labour administration is not simply the responsibility of the department of labour. Many
agencies and government departments such as chambers of commerce, factory and mines
inspectorate, social insurance directorate, and department of human resource development
and education are involved in it. In some countries, the organisations of employers and
workers are also involved in the administration of labour matters. But it is primarily the
responsibility of the department of labour to lay down, develop and apply sound labour
policies, co-ordinate various recommendations received from various departments which
have a bearing on labour affairs. Formulation of policy decisions are based on consultation
with other interests (particularly of employers’ and workers’ organisations) and of research
and field investigation. Most of the labour policy proposals may emanate from the minister of
labour himself or from his department. The department of labour is the body which receives
most such proposals and initiates the preparatory process. In some cases, labour courts,
arbitration bodies and different adhoc commissions can be regarded as forming part of the
labour administration machinery, though they are usually outside the department of labour.
These bodies are either bipartite or tripartite in character

ILO AND LABOUR ADMINISTRATION:

ILO Convention No. 150 and Recommendation No. 158 concerning the role, functions and
organization of labour administration (1978) lay down an international framework within
which the preparation, implementation, coordination, supervision and evaluation of national
labour policy are carried out.

The Convention defines the concept of labour administration and the areas it covers as: A
coherent national labour policy; a coordinated system; organization integrating the active
participation of management and labour and of their respective organizations; and appropriate
human, financial and material resources for an effective and efficient service at the national
level, this apparatus is generally found within a labour ministry or related agencies.
For the ILO, labour administration is defined as public administration activities in the field of
national labour policy.

By labour administration system is meant all public administration bodies responsible for
and/or engaged in labour administration – whether they are ministerial departments or public
agencies, including parastatal and regional or local agencies, or any other form of
decentralized administration – and any institutional framework for the coordination of the
activities of such bodies, and for consultation with and participation by employers and
workers and their organizations.

PUBLIC ADMINISTRATION

Within the realm of public administration, labour administration is a relatively new arrival. It
was only in the late nineteenth century that governments accepted the need for a permanent
system of labour administration to regulate labour market forces and improve working
conditions. With the passage of time, the responsibility for labour administration was vested
in fully fledged ministries concerned with labour and social matters. During the past century,
there has been increasing recognition of the importance of labour administration to national
development. Initially, this became apparent in the creation of special labour units attached to
ministries of the interior or ministries responsible for economic affairs empowered to draft,
apply and enforce labour laws. The creation of the ILO in 1919 marked a clear watershed,
with many labour ministries coming into being after this date. A concomitant trend was the
formation of national labour inspection systems, with powers to enforce the law, which were
set up in countries including Brazil, France, India, Italy, Malaysia, Spain, Sri Lanka and the
United Kingdom.

Since those early years of the twentieth century, most countries have maintained a viable and
active labour administration system responsible for all aspects of national labour policy
formulation and implementation. In addition, labour administrations in ILO member States
have contributed to compliance with international labour standards by means including the
collection of labour statistics,
which are invaluable in identifying needs and formulating labour policy at both national and
international levels.

NATIONAL LABOUR POLICY

Although the Labour Administration Convention, 1978 (No. 150) does not define a national
labour policy, it is commonly accepted that such a policy includes all labour-related matters,
such as protection of employment and working conditions, the promotion of equal
opportunity, and fundamental principles and rights at work. It is clear that a wide range of
activities are covered, but not all these activities come under the direct or immediate
supervision of the ministry of labour, and so proper coordination within the overall
administrative system is needed. In general, the ministry of labour (or employment, or
welfare, or social affairs) often has to coordinate its work with that of other ministries. When
developing initiatives in respect of persons working illegally, for example, the ministry of
labour will coordinate with the ministry of finance, which has competency in this area in
respect of people who are not paying taxes. Similarly, when developing initiatives that affect
women, the ministry of labour will coordinate with the ministry for family affairs (or
women), and so on.

At the global level, poverty reduction, the fostering of social cohesion and job creation made
their way back on to the political agenda after the 1995 World Summit for Social
Development in Copenhagen and were prominent in discussions at the Millennium Summit
of 2000 and the World Summit in 2005 that marked the 60th anniversary of the United
Nations. Throughout all these deliberations a growing concern became evident on the part of
many countries, enterprises and civil society.

Decent work:

In the ILO’s analysis, the concept of Decent Work is captured in four strategic objectives:
fundamental principles and rights at work; employment and income opportunities; social
protection and social security; and social dialogue and tripartism. These objectives hold for
all, women and men, in both formal and informal economies.

The primary goal of the ILO today is therefore to promote opportunities for all to obtain
decent and productive work, in conditions of freedom, equity, security and human dignity.
The State, through its labour administration system, bears a heavy responsibility in the social
field, most importantly to safeguard the fundamental human rights of workers and, in
particular, to ensure respect of the minimum age for admission to employment, abolition of
forced labour, freedom of association, the right to collective bargaining, non-discrimination,
and equal remuneration for work of equal value.

Labour administration is a tool at the disposal of governments to achieve the ILO’s Decent
Work objectives, to enforce labour legislation, and to offer solutions to the various and
complex problems world of work faces. To have the maximum impact, labour administration
must act in consultation and cooperation with workers, employers and their respective
organizations, in order to foster social dialogue. A better knowledge of the role, functions and
organization of labour administration will enable the public to understand the relationship
between social policy and economic policy, and to identify the vast array of services to which
most people have access during their working lives.

Labour Administration’s Main Fields of Activity The contribution of the national labour
administration towards achieving conditions where "women and men obtain decent and
 LABOUR Employment
- Working conditions - National employment policy
- Wages - Unemployment insurance schemes
- Employment conditions - Vocational guidance
- Safety and health at work - Vocational training programmes
- Social security
- Employment services
- Labour inspection
- The working environment

Information and Research

Labour-management relations
- Collection of information
- Surveys - Definition of the framework and rules for the
representation of labour and management
- Forecasts
- Collective bargaining
- Dissemination of information
- Settlement of labour disputes
- Statistics and policy development
- Workplace cooperation
- Relations with mass media
productive work in conditions of freedom, equity, security and human dignity" (Decent
Work, p.3) concerns all or part of the following fields, depending on the individual country:

INDIAN CONTEXT OF LABOUR ADMINISTRAION:

In the Government of India (Amendment) Act, 1919, the Central Legislature was given the
power to legislate in respect of practically all labour subjects. The Provincial Governments
were empowered to legislate only in respect of those labour matters which were classified as
Provincial. But they were required to take the sanction of the Governor General in respect of
these subjects also. All labour legislation was enacted by the Central Legislature during this
period, there were only a handful of laws existing such as the Fatal Accidents, 1855,
Workmen’s Breach of Contract Act, 1859, Employers and Workmen’s Dispute Act, 1860 etc.
No policy on other aspects of labour policy prior to 1919.
When the Whitley Commission reported in 1931, the bulk of the labour problems within the
jurisdiction of the Government of India was dealt with by the then department of industries
and labour under the charge of a member of the Governor General’s Executive Council. Its
administrative head was a secretary to government. While ‘Industries and Labour’ was a
short title for the department, it dealt with a variety of subjects, such as posts and telegraphs,
public works, civil aviation, patents and copyright and broadcasting. The department,
however, did not cover all labour within the jurisdiction of the Central Government.
Questions relating to labour in docks, and transport by sea or inland water, were the concern
of the commerce department; matters pertaining to the railway labour were dealt with by the
Chief Commissioner for Railways. The department of education, health and lands looked
after emigrant labour. In the Chief Inspector of Mines, the department of industries and
labour had an adequate source of advice on all subjects relating to mining labour.
On the introduction of provincial autonomy under the Government of India Act, 1935, labour
was included in the concurrent list. Accordingly, central legislature was empowered to enact
labour legislation in respect of matters exclusively included in the federal list and central and
state legislatures were given authority to enact legislation in respect of all other labour
matters. When popular ministries took over administration under the Government of India
Act, 1935, labour problems started attracting more attention. The appointment of the labour
commissioner in industrially important provinces as recommended by the Whitley
Commission did help labour. However, problems of co-ordination still remained. The Labour
Ministers’ Conference and the Indian Labour Conference Standing Labour Committee
(I.L.C./S.L.C.) which were the products of the forties, partly met this need.

A network of National Employment Service and Training Institutes were set-up. The Five-
Year Programme for Labour (1946) had many elements in it requiring the strengthening of
the administration and intensifying its operations. The legislative support given to the
programme resulted in (a) the creation of administrative machinery for the implementation of
new enactments; and (b) the strengthening of the then existing set-up to cope up with the
additional functions entrusted to it. The expanding operations of the tripartite bodies also
added new responsibilities.

At present there is a tripartite labour machinery. It consists of the Indian Labour Conference,
the Standing Labour Committee, the Industrial Committees, and a few other committees of a
tripartite nature. Labour Ministers’ Conferences are also associated with it. There is also a
bipartite joint consultative committee of the Ministry of Labour and Employment. In
addition, there are committees and boards such as Committee on ILO Conventions, Central
Implementation and Evaluation Committee, Steering Group on Wages, Wage Board, Central
Board for Workers’ Education, and Central Committee on Labour Research.

According to the Constitution of India, the enactment and administration of labour laws is the
responsibility of both the Union and State Governments. There are three lists, viz., the Union
List, the Concurrent List and the State List adopted in the Constitution. Laws concerning the
union, are made both by parliament and legislature of any state and the laws of the state list
are made by states’ legislatures. The following are the principal matters of labour interest
enumerated in each of these lists:

Union List Concurrent List State List

Participation in international Economic and social Public order;
conferences, associations and planning;
other bodies and
implementing decisions
made there at
Port quarantine, including Trade Unions, industrial and Public health and sanitation,
hospitals connected labour disputes; hospitals and dispensaries;
therewith, seamen’s and and
marine hospitals;
Regulation of labour and Social security and social Relief of the disabled and
safety in mines and oilfields; insurance; employment and unemployable.
unemployment;
Industrial disputes Welfare of labour, including
concerning union employees; conditions of work, provident
fund, employers’ liability,
workmen’s compensation,
invalidity and old age
pensions, and maternity
benefits;
Union agencies and Vocational and technical
institutions for: training of labour; and
a) professional, vocational or factories
technical training; and
b) the promotion of special
studies or research.
Enquiries, surveys and Inquiries and statistics for
statistics for the purpose of purposes of any of the
any of the matters in this list. matters specified in the
concurrent list and the state
list.

Most of the states have also appointed chief inspectors of factories and chief inspectors of
boilers to administer the Factories Act, 1948 and the Indian Boilers Act, 1923 respectively. In
addition, they have appointed commissioners of workmen’s compensation under the
Workmen’s Compensation Act, 1923 and registrars of trade unions under Trade Unions Act,
1926 and various other authorities with a view to discharging labour administration work in
their respective jurisdictions. Certain States have also special machinery for the collection of
labour statistics.

MACHINERIES FOR LABOUR ADMINISTRATION IN INDIA:

The machineries for labour administration in the states are similar to those operating at the
centre. As subject labour falls under the concurrent list where both state and central
government are empowered to formulate rules. The central government is empowered to give
direction to the state government and to delegate powers and impose duties on them. Many
central labour laws are enforced both by the central and state government in industries or
establishments falling under their respective jurisdictions.
Generally speaking, labour administration of the state governments is on a pattern similar to
central labour administration with slight variations relating to implementing agencies and the
requirements of the state enactments and non-statutory labour programmes. the main
organizations for labour administration in the states comprise, department of labour and
employment (secretariat), office of labour commissioner chief inspectorate of factories, chief
inspectorate of boilers, office of chief inspector, shops and establishments, directorate,
employment and training, directorate, medical services ESI scheme), social security
directorate and adjudication authorities.

DEPARTMENT OF LABOUR AND EMPLOYEMNT (SECERTARIAT):

The responsibility for labour administration in the states generally vests in the department of
labour and employment, the secretariat of which represents the government side. It is
generally in charge of a minister, who may occasionally be assisted by a minister of state and
deputy minister. on the official side, the secretary or the principal secretary is the chief
executive. his team generally includes an additional secretary, and a few joint secretaries,
deputy secretaries and undersecretaries according to requirements. it is this organization that
formulates the labour policy of the state, establishes liaison with the central ministry of
labour coordinates and guides the activities of enforcing machineries and takes decisions on
behalf of the government.
The ministry of labour at the centre is responsible for looking after the subjects which appear
in the union and concurrent lists of the Seventh Schedule of the Constitution of India. These
subjects include industrial relations, wages, employment, emigration, labour welfare and
social security measures for which the ministry has to formulate, review and implement
national policies. It looks after
(i) labour policy and legislation;
(ii) safety, health and welfare of labour;
(iii) social security of labour;
(iv) policy relating to special target groups, such as women and child labour, and
(v) employment services and vocational training

OFFICE OF THE LABOUR COMMISSIONER:

The Labour Department, Government of N.C.T. of Delhi is headed by Secretary (Labour),

who is assisted by Commissioner, Special Labour Commissioner, Deputy Labour
Commissioners, Assistant Labour Commissioners, Chief Inspector of Factories, Electrical
Inspector, Chief Inspector of Boilers, Chief Inspector of Shops and Establishments, Labour
Officers, Welfare Officer and other supporting staff. With a view to make the administration
responsive to the needs of the people and bring governance to their doorsteps, the department
has been organized on territorial basis into nine districts. Each district is headed by a Deputy
Labour Commissioner who is assisted by Asstt. Labour Commissioners and Labour Officers.

The Chief Labour Commissioner (Central) is responsible for

(a) prevention, investigation and settlement of industrial disputes in the central sphere;
(b) enforcement of awards and settlements;

(c) implementation of labour laws in industries and establishments in respect of which the
central government is the appropriate government;

(d) verification of membership of unions affiliated to the central organisation of workers for
giving them representation on national and international conferences and committees; and (

e) fixation and revision of minimum wages under the Minimum Wages Act, 1948 in the
central sphere of scheduled employments.

CHIEF INSPECTORATE OF FACTORIES:

The Chief Inspector of Factories is assisted by Deputy Chief Inspectors of Factories,

Inspectors of Factories and Inspector of Factories (Medical). The Chief Inspector of
Factories, who heads this Inspectorate works under the administrative control of Labour
Commissioner cum Secretary (Labour) of Government of NCT of Delhi. The Inspectors work
under the supervisory control of Dy. Chief Inspectors of Factories. The Dy. Chief Inspectors
of Factories and Inspector of Factories (Medical) operate from Headquarters.

CHIEF INSPECTORATE OF BOILERS:

The boilers are inspected by the Boiler Inspectorate as per the procedure laid under Indian
Boilers Regulations –1950, during use, and if found satisfactory are allowed to be worked for
a maximum period of 12 months as per the provisions of Indian Boiler Act - 1923. The
boilers are also casually visited to check the validity of the certificate, their safe and efficient
operation. The Inspectorate also guides the boiler owners to work the boilers more efficiently
keeping in view Basic Objective of the Act i.e., the "Protection of Human Life & Property
from the explosions of the Boilers".

OFFICE OF CHIEF INSPECTOR, SHOPS AND ESTABLISHMENTS:

The object of Delhi Shops and Establishments Act, 1954, is to give some minimum benefits
and relief to the vast unorganized sector of employees, employed in Shops and
Establishments. Industrial Dispute Act 1947, and Delhi Shops & Establishments. Act, 1954
are supplemental to each other.
The Act is enforced through the Chief Inspector of Shops (CIS) and various inspectors under
the Act, who are posted in nine districts of the capital who function under the supervision and
control of Dy./ Asstt. Labour Commissioners of the concerned district. Chief Inspector
functions under the supervision of Dy. Labour Commissioners (CIS) who in turn functions
under the supervision of LC.

DIRECTORATE, EMPLOYMENT AND TRAINING:

The organization primarily looks after the operation of employment exchanges, industrial
training institutes, vocational guidance programme and some other institutions. The activities
of the directorate are essentially governed by the policies, standards and procedures set by the
central directorate general, employment and training. Other activities of the organization
include employment market information, vocational rehabilitation centres, and training of
handicapped groups such as women and physically handicapped. The training wing of the
department also looks after the implementation of the apprentices’ act, 1961. Generally, the
directorate functions independently of the organizing of labour commissioner.
The Central Board for Workers’ Education is a registered society dealing with the schemes of
training of workers in the techniques of trade unionism and in bringing about consciousness
among workers about their rights, duties and responsibilities. The Board has also undertaken
programmes for rural workers’ education and functional adult education.

DIRECTORATE, MEDICAL SERVICES (ESI SCHEME):

The main responsibility for the operation of medical benefit under the employees’ state
insurance act, 1948 lies with the state governments which are required to make available the
services of the medical and para-medical personnel. In most the states a special wing has
been established for the purpose. As the medical benefit under the ESI scheme has been
extended also to the family members of the insured persons and superannuated employees,
the responsibility of the state governments in this regard has increases. A director,
administrative medical officer or a chief medical officer under the labour department has
been made in charge of the wing.

SOCIAL SECURITY DIRECTORATE:

A few states have established social security directorates for implementing certain social
security schemes for the poor, unorganized workers, rehabilitation of bonded labourers and
implementation of the interstate migrant workmen (regulation of employment and conditions
of services) act, 1979. They also look after the implementation of national old age pension
scheme, national family benefit scheme and national maternity benefit scheme.
ADJUDICATION AUTHORITIES:

The state governments have also constituted labour courts and tribunals under the industrial
disputes act, 1947, and a few of them have set up other adjudication authorities such as
industrial courts and wages boards under state laws. As on October 31,1998, as many as 214
labour courts, 97 tribunals and 22 labour courts-cum-tribunals were functioning in the states.
Industrial Tribunal-cum-Labour Courts have been set up under the provisions of the
Industrial Disputes Act, 1947, for the adjudication of industrial disputes which fall in the
central and the state sphere respectively. It is, however, open to the Central Government to
refer a matter in relation to which it is the appropriate government to a labour court or
industrial tribunal constituted by the state government.
LABOUR COURT:
The Industrial disputes Act provides a legalistic way of settling disputes. The goal of
preventive machinery as provided under the Act is to create an environment where the
disputes do not arise at all. The ID Act prohibits unfair labour practices which are defined in
the Fifth Schedule strikes and lockouts (except under certain defined conditions and with
proper notice). It also provides for penalties for illegal strikes and lockouts and unfair labour
practices and provisions regarding lay off and retrenchment as well as compensation payable
thereof.
To settle the Industrial disputes, the Industrial Disputes Act,1947 provides three kinds
of Courts - Labour Court, Industrial Tribunal and National Tribunal or National Industrial
Tribunal. The appropriate government may constitute one or more labour Courts for the
purpose of adjudicating on the matter referred to it. The ID Act provides for the appointment
of Conciliation Officers, Board of Conciliation, Courts of Inquiry, Labour Courts, Tribunals,
and National Tribunals for settlement of disputes. Another method recognised for settlement
of disputes is through arbitration.
Section 7 of Industrial Dispute Act 1947 .of Individual workmen raises Industrial dispute
Which says: The appropriate government is empowered to establish one or more Labour
Courts. Its function is to settle industrial disputes concerning any matter specified in the
second schedule

Qualification : for the appointment of a Presiding Officer of the Court as per section 7(3) of
ID ACT 147
(i) He is or has been a judge of high court
(ii) He has for a period of not less than 3 years, been a district judge or an additional judge
(iii) He has held any judicial office in India for not less than 7 years
(iv) He has been the presiding officer of labour Court constituted under any Provision Act for
not less than 5 years

Disqualifications : Section 7-C of the Industrial Dispute Act,1947 prescribes

Disqualifications for the presiding officer to be appointed to the Labour Court. It provides
that no person shall be appointed to or continue in office if:
(a) He is not an independent person; or
(b) he has attained the age of 65 years

The Jurisdiction of Labour court as stated in Second Schedule of ID ACT 1947

1. The propriety or legality of an order passed by an employer under the standing orders;
2. The application and interpretation of standing orders;
3. Discharge or dismissal of workmen including reinstatement of, or grant of relief to,
workmen wrongfully dismissed;
4. Withdrawal of any customary concession or privilege;
5. Illegality or otherwise of a strike or lock-out; and

Territorial Jurisdiction of Labour Court: Assumption of jurisdiction by labour court without

deciding objection to territorial jurisdiction was unwarranted unless it had necessary
territorial jurisdiction, its order was bound to be without lawful authority.

SECTION 10 of ID ACT 1947 stating about reference power of the appropriate government
to boards, council, or tribunal:

1. According to [Sec 10 (1) (c)] matters specified in THIRD SCHEDULE, dispute not
effecting more than 100 workers can be referred to labour court.

2. According to [Sec 10 (2)] when parties in the industrial dispute apply to the
government to refer dispute to the labour court and if government satisfies it shall
make the reference to the labour courts.

3. According to [Sec 10 (6)] no Labour Court or Tribunal shall have jurisdiction to

adjudicate upon any matter which is under adjudication before the National Tribunal.

Power and status of the labour court in trying offences:

(1) Power and status in trying offences

While trying an offence, a labour court shall follow as nearly as possible summary procedure
as provided under Cr.P.C, and shall have the same powers as are versed in the court of a
magistrate of first class specially empowered u/sec 30 of Cr.P.C and

(2) Power and status in civil matters

For the purpose of adjudicating and determining any industrial dispute, a labour court shall be
deemed to be a civil court and follow the procedure as provided under C.P.C and shall have
the same powers as are vested in such court under C.P.C. Following are the powers of labour
court.
(a) The labour court shall follow as nearly as possible summary procedure as prescribed
under the code of criminal procedure 1898 (Act V of 1898)
(b) A labour court shall for the purpose of trying an offence under the code have the same
powers as are vested in the court of a magistrate of the first class under the code of criminal
procedure.
(c) The labour court shall for the purpose of inflicting punishment have the same powers as
are vested in Court of Session under that code.
(d) A labour court shall while trying an offence hear the case without the members.

To Grant Relief Labour court can grant full and final relief to the aggrieved
party.
To Grant interim Relief Labour court is also competent to grant ad-interim relief under
its inherent powers.
To grant Adjournment Labour court has the power to grant adjournments if just cause
to shown.
To enforce attendance of Labour court can enforce the attendance of any person which is
any Person necessary for deciding the matter before it and this it can done
so by issuing summons, proclamation etc.
Power to Examiner Labour court can examine any person on oath.
To compel Production of Labour court can compel the production of documents and
Documents etc material objects, necessary for deciding the matter in questions.
To issue commissions Labour court has the power to issue commissions for the
examination of witnesses or documents.
Ex-part Proceedings Labour court has the power to proceeding ex-parte, where the
party failed to appear before it
to determine Grievance Labour court may determine the grievance of workmen and in
of workmen doing so, it shall go into all the fact of the case and pass such
order as may be just and proper in the circumstances of the case.

Labour court is a civil court stated, In the case of Public Bank V the Chairman 1st labour
court1 the question was raised whether a labour court is a civil court or not there. Lordship of
1. Md. Abdul Halim, The Bangladesh Labour Code, 2006,CCB Foundation, Ed.1, p.282 the
appellate division upon consideration of relevant provision of the industrial relations
ordinance 1969 held that the labour court acts as civil court for limited purpose but not a civil
court at all it is only by a legal fiction or a statutory hypothesis that it is to be treated as a civil
court.

(3) While trying cases of Rights Given under special Acts

Where the special acts confer on litigants’ certain rights but the power to decide, try or
adjudicate the case in conferred on the labour court established under PIRA 2010 and no
procedure is prescribed, labour courts can apply their own procedure.

1
44DLR(AD)
Exemption from court fee: No court fees are payable for filing, exhibiting or recording any
document in or obtaining any document from labour court.

Withdrawal of case: Where the matter has resolved the parties amicable before a final order
is passed by the labour court, the labour court may allow withdrawal of such case if there are
sufficient grounds for such withdrawal.

Functions of the Labour Court:

Adjudicating upon industrial dispute specified in the second schedule of the said Act; are as
follows
(1) The propriety or legality of any order passed by an employer under the standing orders;
(2) The application and interpretation of the Standing Orders
(3) Discharge or dismissal of the workman including reinstatement of, or grant of relief to,
the workman wrongfully dismissed;
(4) Withdrawal of any customary concession or privilege
(5) Illegality or otherwise of a strike or Lockout; and
(6)All matters other than those specified in the Third Schedule which fall within the
jurisdiction of Industrial Tribunal.

Performing such other functions as may be assigned to it under the Industrial Dispute Act,
1947. The Other matters assignable on the Labour Court are:
(1) Voluntarily reference of dispute by written agreements between the parties under Section
10A;
(2).Arbitration reference under Section 10A;
(3) Permission to or approval of the action of discharge under Section 33;
(4) Complaint by the aggrieved employees under Section 33A;
(5) Application under Section 33(c)2A for the computation of any money or any benefit
which is capable of being computed in the terms of money.
(6) Reference of awards or settlement for the interpretation in case of difficulty or doubt
under Section 36AA

Duties of Labour Court:

Labour Court shall hold its proceedings within the specified period and shall submit its award
to the Government. Such award must be in writing and signed by the presiding officer.
The Labour Court has the same power of a Civil Court. The proceeding of the Labour Court
shall not be questioned on the ground that it is not properly constituted.
OTHER AUTHORITIES/BODIES ROLE IN LABOUR ADMINISTRATION:

 The Labour Bureau is responsible for collection, compilation and publication of

statistical and other information regarding employment, wages, earnings, industrial
relations and working conditions. It also compiles and publishes the Consumer Price
Index Numbers for industrial and agricultural workers. The Bureau also renders
necessary assistance to the States for conducting training programmes in labour
statistics at state/district/unit level.

 The National Labour Institute is a registered society. It conducts action-oriented

research and provides training to grass root workers in the trade union movement,
both in urban and rural areas, and also to officers dealing with industrial relations,
personnel management, and labour welfare. The National Council for Safety in Mines
is concerned with enhancing safety consciousness among miners.

 In states where no separate authority exists for labour welfare, the commissioner is
expected to supervise these activities also. The commissioner is thus the kingpin of
labour administration at the state level. That is why in some states he has been given
an ex-officio secretariat status.

PROS AND CONS:

Labour Administration is an acknowledged actor in the formulation of government economic

and social policies; a major source of information in its fields of competence for government,
employer and worker and policy decision-making; an active intermediary for preventing and
settling industrial disputes; an informed observer of the trends and development of society by
virtue of its special links with the social partners; a provider of effective solutions to the
evolving needs of its users.

The conditions under which labour administrations operate have changed dramatically over
the last few decades, due both to technological, economic and political developments and to
the globalization of trade. Some labour administrations saw these developments as an
opportunity to re-legitimize their existence and development and even to introduce a new
dynamic. Others seem to have lost their raison d'être and their influence

CHALLENGES FACED BY LABOUR ADMINISTRATION:

Labour administration must through socially dialogue in particular it find means of redefining
its organization and intervention strategy so that it can better respond to expectations. For this
propose labour administration should reposition itself as a major actor in the development of
a country.

In developing countries, it is the informal economy; Countries in transition it is the New

political and social democracy and transition to the market economy; In industrialized
countries it would be the Budget restrictions, effectiveness, efficiency; In supranational
groups the need for Clarification and harmonization of the principles and objectives of the
member countries

CONCLUSION:
The ILO is committed to strengthening labour ministries with a view to developing labour
administration based on international labour standards, as embodied in the ILO Conventions
and Recommendations. This it does through the practical means of projects and programmes
aimed at enabling labour administration to perform its functions better at all levels: at the
local level, to be sensitive to changing needs of its users; at the national level, to be capable
of adapting to the contextual environment and anticipating changes; and at the international
level, to meet the challenges resulting from changes by forecasting long-term developments
and devising strategies for the future. Technical cooperation activities, involving training and
retraining, are also undertaken to improve the quality and skills of labour administration staff.
The ILO’s tripartite principle has a significant influence on the development of labour
administration by acknowledging workers and employers as equal partners with governments
on labour and economic issues.

REFERENCE:

PRIMARY SOURCES:

 Dhyani, S.N., Industrial Relations System, Prentwell Publishers, Jaipur, 1988.

 Mamoria, C.B., and Gankar, S.V., Dynamics of Industrial Relations, Himalaya
Publishing House, Mumbai, 2013

SECONDARY SOURCES:
 https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---
publ/documents/article/wcms_120687.pdf
 International Labour Organization: Search Services (ilo.org)
 About the Ministry | Ministry of Labour & Employment
 Authority | Chief Labour Commissioner (clc.gov.in)
 Supervisory mechanism of ILO
T.Dharshni

G.Divya dharshini

Synopsis

Introduction

Origins and composition

Relevant constitutional provisions

The Supervisory System of the ILO

Mutual supervision

Regular Procedure and National Reporting System

Committee of Experts

Conference Committee on the Application of Standards

Procedure for the Supervision and Recommendations of Unratified

Conventions

Ad Hoc Procedures

Commission of Inquiry

General Surveys

Case Study

Myanmar Case Study: Forced Labour

Conclusion

References
Introduction

The ILO has a comprehensive and long-standing supervisory system, with a range of
different and mutually reinforcing mechanisms. International Labour Standards (ILS) adopted
within the ILO is supported by a supervisory system to monitor and promote the proper
implementation of ratified Conventions by Member States. ILS supervision comprises legal
assessment, tripartite scrutiny and, where appropriate, direct contact with, and technical
support to, Member States on the basis that optimal implementation will be achieved through
dialogue, encouragement, advice and assistance.

Once a country has ratified an ILO convention, it is obliged to report regularly on measures it
has taken to implement it.

 Every two years, governments must submit reports detailing the steps they have taken
in law and practice to apply any of the eight fundamental and four priority
conventions they may have ratified;
 For all other conventions, reports must be submitted every five years, except for
conventions that have been shelved (no longer supervised on a regular basis).

Governments are required to submit copies of their reports to employers¿ and workers¿
organizations. These organizations may comment on the government’s reports; they may also
send comments on the application of conventions directly to the ILO.

“Universal and lasting peace can be established only if it is based on social justice."

- ILO Constitution, 1919

Origins and composition

The ILO constitutional provisions relating to supervision of the application of ratified

Conventions – the obligation to make annual reports on measures taken to give effect to
ratified Conventions and the procedures for the presentation of representations and
complaints – have been in place since they were first set out in the 1919 Constitution, which
formed Part XIII of the Treaty of Versailles,6 establishing the League of Nations, the
predecessor of the United Nations. The Constitution set out the obligation for member States
to submit regular reports on implementation in national law and practice for each of the
Conventions that they had ratified.

Relevant constitutional provisions

1)Article 22 of the ILO Constitution: Obligation to report on ratified Conventions

"Each of the Members agrees to make an annual report to the International Labour Office on
the measures which it has taken to give effect to the provisions of Conventions to which it is
a party. These reports shall be made in such form and shall contain such particulars as the
Governing Body may request."

2)Article 19 (5e): Obligation to report on unratified Conventions

"If the Member does not obtain the consent of the authority or authorities within whose
competence the matter lies, no further obligation shall rest upon the Member except that it
shall report to the Director-General of the International Labour Office, at appropriate
intervals as requested by the Governing Body, the position of its law and practice in regard to
the matters dealt with in the Convention, showing the extent to which effect has been given,
or is proposed to be given, to any of the provisions of the Convention by legislation,
administrative action, collective agreement or otherwise and stating the difficulties which
prevent or delay the ratification of such Convention."

3) Article 19 (6d): Obligation to report on Recommendations

"Apart from bringing the Recommendation before the said competent authority or authorities,
no further obligation shall rest upon the Members, except that they shall report to the
Director-General of the International Labour Office, at appropriate intervals as requested by
the Governing Body, the position of the law and practice in their country in regard to the
matters dealt with in the Recommendation, showing the extent to which effect has been given
or is proposed to be given, to the provisions of the Recommendation and such modifications
of these provisions as it has been found or may be found necessary to make in adopting or
applying them."
4) Article 23: Ratified Conventions, unratified Conventions and Recommendations
"The Director-General shall lay before the next meeting of the Conference a summary of the
information and reports communicated to him by Members in pursuance of articles 19 and
22."
"Each Member shall communicate to the representative organizations […] copies of the
information and reports communicated to the Director-General in pursuance of articles 19
and 22."

The Supervisory System of the ILO

The ILO is characterized by three basic features: one of its main means of action is the
adoption of international treaties; it is endowed with a unique tripartite structure of
government, labor, and employer representatives; and it is endowed with detailed supervisory
procedures.

The supervisory system of the ILO is essentially based on two types of procedures – a regular
procedure and ad hoc procedures (i.e., activated on an adversarial basis). The basis of the
ILO’s supervisory system is described in its Constitution. However, its present structure is
the result of a series of adjustments made by the Conference and the Governing Body over
the years in an effort to adapt the procedure to the increasing numbers of conventions and
States that are parties to them. Notably, because of the constant increase in the number of
conventions, it became impossible for the International Labour Conference to examine at its
annual sessions all the reports that the governments were obliged to submit on their
implementation of ILO conventions.

Thus, in 1926 the Governing Body established two special bodies to deal with these reports:
the independent Committee of Experts on the Application of Conventions and
Recommendations and the Conference Committee on the Application of Conventions.

Mutual supervision

Article 408 of the Treaty of Versailles (the current article 22 of the Constitution), which
introduced the concept of “mutual supervision”, followed a proposal made by what was then
described as the British Empire to the Commission on International Labour Legislation, and
read as follows:
“Each of the Members agrees to make an annual report to the International Labour Office of
the measures it has taken to give effect to the provisions of Conventions to which it is a party.
These reports shall be made in such form and shall contain such particulars as the Governing
Body may request. The Director shall lay a summary of these reports before the next meeting
of the Conference.”

The concept of “mutual supervision” among ILO Members emerged from the work leading
to the development of the ILO, based on the precept that ILO Members would all be bound
by the same ratified Conventions, thereby preventing unfair competition between countries.

Regular Procedure and National Reporting System

The regular procedure is described in Articles 19, 22, and 23 of the Constitution. Paragraphs
5, 6, and 7 of Article 19 contain a series of requirements designed to ensure that the executive
and legislative branches of Member States give full consideration to both the possibility of
implementing and the advisability of ratifying a convention. Namely, the instrument, either a
convention or a recommendation, must, within a period of 12 to 18 months after its adoption
by the International Labour Conference, be brought before the competent national authority
or authorities for the enactment of domestic legislation or other action. Clearly, only duly
ratified conventions become legally binding at the international level. If the competent
authority agrees to ratify a convention, then the Member State will communicate the formal
instrument of ratification to the International Labour Office and will take such action as may
be necessary to implement the provisions of the convention

Committee of Experts

The Committee of Experts on the Application of Conventions and Recommendation

(CEACR) was set up in 1926 to examine the growing number of government reports on
ratified conventions. Today it is composed of 20 eminent jurists appointed by the Governing
Body for three-year terms. The Experts come from different geographic regions, legal
systems and cultures. The CEACR¿s role is to provide an impartial and technical evaluation
of the state of application of international labour standards.

When examining the application of international labour standards the CEACR makes two
kinds of comments:

Observations contain comments on fundamental questions raised by the application of a

particular convention by a state. These observations are published in the Committee's annual
report.

Direct requests relate to more technical questions or requests for further information. They
are not published in the report but are communicated directly to the governments concerned.

The Committee of Experts is currently composed of 20 members (compared with 8 during its
initial period of operation) who sit in their personal capacities. The members are proposed by
the Director-General and appointed by the Governing Body for three-year terms. Member
States, therefore, are not directly involved in the process. The perception that the members of
the ILO Committee of Experts are objectively selected rather than politically appointed may
have contributed considerably to its reputation for objectivity and competence. Often,
members of the Committee of Experts are reappointed for successive terms. All are eminent
jurists, expert either in labour law or public international law.

The Committee of Experts meets annually on a date fixed by the Governing Body. Its role is
to carry out an independent and technical evaluation of the national reports and to report to
the Conference on the degree to which national practices and legislation conform to
international obligations.

From the beginning, the Committee of Experts has been fully aware that a key objective of
supervision is to obtain full and accurate data. To this end, the ILO developed the practice of
sending a detailed questionnaire to the parties to each convention. The questionnaire
concentrates on four sources of information: national legislation; judicial decisions; reports of
activities of labour inspection services; and information on the participation of employers and
workers organizations. The purpose of this questionnaire is to make it possible to determine
whether a country’s domestic law and practice conform to the relevant ILO conventions and
recommendations, and the ILO Constitution. Undeniably, governments can try to avoid
control by simply neglecting to mention any piece of legislation or practice that is not
compatible with the conventions concerned. To avoid this risk, governments are requested to
send copies of their reports to national organizations of employers and workers, which may
present comments thereon.[22] Non-State entities are, therefore, extremely important for the
ILO system because they increase the credibility of the data-gathering process.

The ILO Committee of Experts undertakes a technical examination of reports submitted on

ratified conventions in a closed session, without the presence of the States’ representatives or
those of organizations of employers or workers. There is no media publicity covering the
work of the Committee. Closed meetings, the absence of publicity, and the absence of
parties’ representatives have contributed significantly to the depoliticization of the ILO’s
regular review, thus enhancing the reputation of the Committee.

General methodology and the CEACR’s annual report

The methods of work of the Committee of Experts have evolved over the years and in the
context of its general terms of reference. The Committee determines its own methods of work
independently. At present, the Committee meets once a year in Geneva for nearly three weeks
in November–December and its report is examined at the following session of the
International Labour Conference. 30 Its meetings are held in private and its documents and
deliberations are confidential. When the Committee deals with instruments or matters related
to the competence of other specialized agencies of the United Nations system, representatives
of those agencies may be invited to attend the sitting. The Committee assigns to each of its
members initial responsibility for a group of Conventions or a subject. The reports and
information received early enough by the Office are forwarded to the member concerned
before the session. The expert responsible for each group of Conventions or subject may take
the initiative of consulting other members. Furthermore, any other expert may ask to be
consulted before the preliminary findings are submitted to the Committee in the plenary
sitting in the form of draft comments. At this stage, the wording is left at the sole discretion
of the expert responsible. All the preliminary findings are then submitted for the
consideration of the Committee in the plenary sitting for its approval.

The documentation available to the Committee includes: the information supplied by

governments in their reports or to the Conference Committee on the Application of
Standards; the relevant legislation, collective agreements and court decisions; information
supplied by States on the results of inspections; comments of employers’ and workers’
organizations; reports of other ILO bodies (such as commissions of inquiry, or the Governing
Body Committee on Freedom of Association); and reports of technical cooperation activities.
Although the Committee’s conclusions traditionally represent unanimous agreement among
its members, decisions can nevertheless be taken by a majority. Where this happens, it is the
established practice of the Committee to include in its report the opinions of dissenting
members if they so wish, together with any response by the Committee as a whole. The
Committee’s report is in the first place submitted to the Governing Body for information and
its final findings take the form of:

(a) Part I: A General Report in which the Committee reviews general questions concerning
international labour standards and related international instruments and their implementation.

(b) Part II: Observations concerning particular countries on the application of ratified
Conventions, on the application of Conventions in non-metropolitan territories and on the
obligation to submit instruments to the competent authorities.

(c) Part III: A General Survey of instruments on which governments have been requested to
supply reports under article 19 of the ILO Constitution, which is published in a separate
volume.

The annual report of the Committee of Experts is submitted to the plenary session of the
Conference in June each year, where it is examined by the CAS, which, as indicated above, is
an ILC tripartite standing committee. The CAS discusses the findings in the CEACR report
and selects a number of observations for discussion. Governments referred to in these
observations are invited to respond to the CAS and provide further details about the matters
at hand. The CAS draws up conclusions in which it recommends governments to take
specific measures to remedy a problem or to ask the ILO for technical assistance. In the
General Report of the CAS certain situations of particular concern are highlighted in special
paragraphs.

A new dynamic in improving working methods in recent decades

Consideration of its working methods by the Committee of Experts has been an ongoing
process since its establishment. In this process, the Committee has always given due
consideration to the views expressed by the tripartite constituents. Regarding its examination
of governments’ reports and comments of social partners, the Committee has often recalled
that it was relying exclusively on written evidence and that there were no oral hearings or
scope for oral arguments.
Over the years, the Committee of Experts has sought to deliver a rigorous, consistent and
impartial assessment of compliance with ratified Conventions, constantly introducing gradual
improvements to produce more user-friendly, precise and concise comments. This has been
necessary not only in order to give clear guidance to governments but also to facilitate
follow-up action and technical assistance by the Office.

Conference Committee on the Application of Standards

The annual report of the Committee of Experts is submitted to the International Labour
Conference at its next Lecture, where it is examined by the Conference Committee on the
Application of Standards.

The annual report of the Committee of Experts, usually adopted in December, is submitted to
the International Labour Conference the following June, where it is examined by the
Conference Committee on the Application of Standards. A standing committee of the
Conference, the Conference Committee is made up of government, employer, and worker
delegates. It examines the report in a tripartite setting and selects from it a number of
observations for discussion. The governments referred to in these comments are invited to
respond before the Conference Committee and to provide information on the situation in
question. In many cases the Conference Committee draws up conclusions recommending that
governments take specific steps to remedy a problem or to invite ILO missions or technical
assistance. The discussions and conclusions of the situations examined by the Conference
Committee are published in its report. Situations of special concern are highlighted in special
paragraphs of its General Report.

Procedure for the Supervision and Recommendations of Unratified Conventions

As a complement to the regular procedure for supervision of ratified conventions, the ILO
supervisory system also includes a regular survey of national legislation related to
conventions that have not been ratified [as set forth in Articles 19(5)(e) and 6(d) of the ILO
Constitution]. This complementary review cannot be considered a strictly supervisory one. It
is merely concerned with the action taken by Member States with respect to
recommendations and unratified conventions; usually, it does not examine individual
situations in depth.
Under Article 19, general surveys are made yearly by the Committee of Experts on a subject
selected by the Governing Body (e.g., the subject in 1994 was the freedom of association and
collective bargaining). The fundamental conventions 9 have periodically been selected, and
the ILO Governing Body recently decided to make this a regular practice for instruments
dealing with freedom of association and collective bargaining, forced labour, discrimination,
equal remuneration, and child labour. The general reports contain a broad analysis of
domestic laws, administrative action, and collective agreements, as well as comments by the
Committee of Experts on their consistency with the instruments in question.

Employers and workers organizations are encouraged to comment on reports made by their
governments for these general surveys. Moreover, while information provided by
governments usually relates to obstacles to ratification, comments made by employers and
workers organizations can refer to possible abuses arising from the fact that the State
concerned is not bound by a particular convention. A certain number of employers and
workers organizations already make use of this possibility.[34] Depending on the nature of
the comments received, the Committee of Experts, the Conference Committee, and the
Governing Body might discuss a particular situation and in certain cases suggest that there be
direct contacts between the Office and the government in an effort to overcome the
difficulties. The comments might also lead the supervisory bodies to recommend that ILO
technical assistance be used to overcome problems encountered by governments in ratifying
the convention. They might also recommend an examination of the problems encountered by
workers and employers organizations as a consequence of a government’s failure to ratify the
convention at issue.

Under Article 19(5)(e), Member States are requested to explain the difficulties that prevent or
delay the ratification of ILO conventions. This explains why the analysis of these surveys has
continued to grow in importance. Despite their relevance, some conventions have not been
ratified because certain provisions are considered by Member States to be too inflexible and
certain requirements too demanding. In this sense, the general surveys produced by the
Committee of Experts represent a unique source of information for revising, updating, and
improving ILO standards in order to promote their adoption by Member States. In fact, ILO
instruments basically aim to set minimum standards. Knowing why a State fails to ratify an
ILO convention could provide useful insight for striking a better balance between the
minimum common denominator among Member States and the progressive development of
international obligations in the labour field.
Ad Hoc Procedures

During its first 40 years of existence, the supervisory system of the ILO, more or less,
consisted only of the regular procedure based on national reports. The regular 10 procedure is
still the fulcrum of the whole ILO supervisory system. However, during the past 30 years, ad
hoc procedures have gained prominence in the ILO. In the ILO supervisory system, there
exist four mechanisms that on an ad hoc basis can be activated by adversarial action. All are
more adversarial than the regular procedure. The current and presumably long-term trend
seems to be toward a balance between regular and ad hoc procedures.

The Representation Procedure

Since 1919, under Article 24 of the ILO Constitution, employers and workers associations
can make a representation to the International Labour Office that a member has failed to
secure the effective observance within its jurisdiction of a convention to which it is a party.
During the period from 1985 to 1995, about 30 such cases reached the Governing Body. If
the Governing Body decides that a representation is receivable, it sets up an Examination
Committee composed of members of the Governing Body chosen in equal numbers from the
government, employers, and workers groups. During its examination of the case, the
Governing Body may decide to communicate this representation to the government against
which it has been made and may invite that government to make a statement on the subject
should it wish to do so. When the Committee has completed its examination of the substance
of the representation, it presents a report to the Governing Body containing its conclusions on
the issues raised and recommendations as to decisions the Governing Body should make.

When the Governing Body considers the report of the Committee, it must invite the
government concerned, if not already represented in the Governing Body, to send a
representative to take part in the proceedings, though without the right to vote. The final
outcome of the Governing Body’s review is simply the eventual publication of the
representation and any government statement made in reply to it. This procedure is, thus, a
minor and indirect sanction. The Governing Body does not enter into the merits of the
representation (for instance, by commenting on it) or those of the measures taken by the State
against whom the representation was made. Moreover, the entire procedure remains on a
political level, devoid of any technical review, and is held in private.
The Governing Body’s action simply gives public exposure to the conduct of Member States
in certain cases. In some cases, it may recommend that the Committee of Experts continue to
monitor the situation. The representation procedure, being soft and strictly political in
complexion, represents a preliminary but not legally necessary step in the ideally escalating
11 nature of the ILO supervisory system. The ILO system provides for a much more
adversarial and technical procedure, the complaints procedure.

The Complaints Procedure

A second, more intrusive and complex adversarial procedure is contained in Articles 26 to 34

of the ILO Constitution. Any member can initiate this procedure by filing a complaint with
the International Labour Office against any other member concerning an alleged breach of a
convention that both members have ratified. The procedures can also be instigated by the
Governing Body on its own initiative or by a delegate to the Conference in his or her personal
capacity. One of the main characteristics of the ILO complaints procedure is that the filing of
a complaint does not presuppose any direct injury to the plaintiff or, in the case of complaints
filed by States, to its nationals. In fact, the ILO conventions typically have a “collective
structure.”

In the preliminary phase of the complaints procedure, the Governing Body communicates
with the government in question. After this phase, it may appoint a commission of inquiry to
consider and report on the complaint. The Governing Body is free to decide whether or not it
is appropriate to do so under the existing circumstances. There is no recourse against this
decision. Clearly, the Governing Body’s examination of the case is simply a prima facie one
inasmuch as it is not based on the merits of the complaint.

After this preliminary phase, the case is heard in camera. The representatives of the parties
involved as well as selected witnesses are heard. The representatives of the parties involved
can ask the witnesses questions. In some cases, commissions of inquiry have decided to carry
out on-site visits and have requested assistance for this purpose from the government
concerned.

Under Article 29(1), the report of the commission of inquiry must be communicated via the
Director-General to the Governing Body and to each of the governments involved in the
complaint. The report must also be published. Such reports have appeared as special issues of
the ILO Official Bulletin. This communication allows the governments involved to inform
the Director-General, within three months, whether or not each of them accepts the
recommendations contained in the report of the commission. This does not mean that the ILO
Constitution makes the results of a commission of inquiry subject to the consent of the States
concerned, nor does the refusal of the recommendations by the defaulting government affect
the validity of the commission’s conclusions. If the conclusions are rejected, any of the States
involved can refer the complaint to the International Court of Justice (ICJ), whose decision is
final. The ICJ can affirm, vary, or reverse any of the findings or recommendations of the ILO
commission of inquiry. Therefore, the ICJ represents a kind of final, appellate, and merely
optional jurisdiction, which comes only after recourse to a commission of inquiry. 14 In the
majority of cases, the governments involved have accepted the commission’s report. Article
33 of the ILO Constitution provides that, in the event that a Member State fails to carry out
the recommendations of the commission of inquiry or the decisions of the ICJ within the time
specified, the Governing Body may recommend to the Conference such action as it deems
wise and expedient to secure compliance. However, under Article 34, the defaulting
government can at any time inform the Governing Body that it has taken the steps necessary
to comply with the recommendations or the decision of the ICJ and can demand a further
commission of inquiry to verify its contention. If this second report is in favor of the
defaulting government, the Governing Body shall recommend the discontinuance of any
proceedings. No case has ever been referred to the ICJ, and thus Articles 33 and 34 have not
been used yet in practice.

The Freedom of Association Procedure

Along with the representation and complaints procedures there exists a third ad hoc
procedure, the so-called freedom of association procedure. A special mechanism has been set
up to examine complaints of this nature. Freedom of association and collective bargaining are
among the founding principles of the ILO.
Soon after the adoption of Conventions Nos. 87 and 98 on freedom of association and
collective bargaining, the ILO came to the conclusion that the principle of freedom of
association needed a further supervisory procedure to ensure compliance with it in countries
that had not ratified the relevant conventions.
As a result, in 1951 the ILO set up the Committee on Freedom of Association (CFA) for the
purpose of examining complaints about violations of freedom of association, whether or not
the country concerned had ratified the relevant conventions.
Complaints may be brought against a member state by employers' and workers' organizations.
The CFA is a Governing Body committee, and is composed of an independent chair-person
and three representatives each of governments, employers, and workers.
If it decides to receive the case, it establishes the facts in dialogue with the government
concerned. If it finds that there has been a violation of freedom of association standards or
principles, it issues a report through the Governing Body and makes recommendations on
how the situation could be remedied. Governments are subsequently requested to report on
the implementation of remedies.
In cases where the country has ratified the relevant instruments, legislative aspects of the case
may be referred to the Committee of Experts.
The CFA may also choose to propose a "direct contacts" mission to the government
concerned to address the problem directly with government officials and the social partners
through a process of dialogue.

Discrimination in Employment Procedure

A fourth ad hoc procedure was established in 1973 for issues concerning equal treatment.
This procedure enables the Director-General to undertake special studies on issues of
discrimination in employment on the grounds of race, religion, 19 nationality, social origin,
minority status, or sex. This procedure is not limited to those countries that have ratified the
relevant conventions, but can be activated, as the freedom of association procedure, on the
basis of membership to the Organization. This procedure can be initiated by any Member
State with regard to another Member State; by employers and workers organizations (with the
same restrictions valid for the freedom of association procedure; for example, they must be
genuine workers association with a direct interest at stake); or by a Member State with regard
to questions arising within its own jurisdiction. This last feature of the discrimination in
employment procedure is very similar to features of existing noncompliance procedures in
multilateral environmental treaties.

Direct Contacts

Although it is not strictly speaking a supervisory procedure, mention should also be made of
the so-called direct contacts procedure.This procedure was officially introduced in 1968 and
revised in 1973. Since the mid-1970s direct contacts have also been resorted to in connection
with cases of alleged violations of trade union rights under examination by the Committee on
Freedom of Association. The direct contacts procedure consists of on-site visits carried out in
a Member State by a representative of the Director-General at the initiative or at least with
the consent of the government concerned. This procedure can be initiated 20 by the
Committee of Experts, the Conference Committee, the Governing Body, or by the State
involved. This particular procedure was especially welcomed by those States that were to
benefit from it. In fact, it has been initiated more frequently by governments than by the
supervisory bodies.

General Surveys

International labour standards are basic instruments that the international community adopts
and represent common labour ideals and principles. The ILO considers it important to
monitor developments in all countries, whether they ratified them or not, although the
Member States can decide whether or not to ratify agreements. In accordance with Article
19 of the ILO Constitution, Members States shall report on measures which they have taken
at regular intervals to implement any provision of certain Conventions or Recommendations
and identify any barriers which have prevented the ratification of a Convention or delayed it.

A comprehensive annual general review on the law and procedure of Member States, on a
theme chosen by the Governing Bodies, is published in the Committee of Experts. These
surveys are primarily based on reports from the Member States and information transmitted
by organizations of employers and workers. It allows the Expert Committee to assess the
impact of conventions and recommendations, analyze government difficulties as an obstacle
to their implementation and identify ways to overcome them.

Slowness

ILO supervisory procedures, despite their praiseworthy flexibility, are not able to rapidly
overcome serious discrepancies in the application of ratified conventions.[146] For instance,
the average length of time between the filing of a complaint under Article 26 of the ILO
Constitution and its disposal is three years. The reason for this slowness is that the ILO
supervisory system consists, in general, of a two-tiered examination of cases, first by a
technical body and then by a political body, where the decision-making power ultimately
rests. An ad hoc technical body can operate constantly, but the political bodies usually meet
at fixed dates: the Governing Body in regular session twice a year and the International
Labour Conference once a year.

The main exception to this drawback of the ILO supervisory system is the direct contacts
procedure, which can be at any time but nevertheless has only limited effectiveness. The
Committee on Freedom of Association, which meets three times a year, has developed a
special procedure for dealing with urgent cases. These are cases “involving human life or
personal freedom, or new or changing conditions affecting the freedom of action of a trade
union movement as a whole, and cases arising out of a continuing state of emergency and
cases involving the dissolution of an organization. The Committee gives priority to such
cases and makes a special request to the government involved to give a particularly rapid
reply to the allegations. Yet, even many urgent cases seem to require an extremely long
period for consideration by the Committee on Freedom of Association. Undoubtedly, the
strongest weapons of the ILO supervisory system are perseverance and patience.

Year after year, the ILO Governing Body continues to point out instances of noncompliance
until the cases are satisfactorily resolved. For instance, in the case of Chile’s noncompliance
with the freedom of association 35 obligations, from 1975 until 1990, without interruption,
the Governing Body urged the Chilean government to amend its legislation. Yet, because of
the characteristics of environmental problems (which are often from non-point sources and
which are cumulative and cause irreversible damage) and because of the need in some cases
to give swift answers to possible environmental emergencies, multilateral environmental
treaties must develop procedures that can rapidly identify and address cases of
noncompliance by Member States.

Constant noncompliance with environmental obligations over long periods of time by a few
States might, ultimately, offset the efforts of the majority of States. Therefore, whereas in the
field of international protection of human rights time is a precious, and sometimes the only,
ally, in the protection of the environment it represents a major handicap. The frequent
sluggishness experienced with multilateral environmental treaties could be partly
compensated for by including provisions concerning interim measures to be taken while a
case is pending before the organs charged with monitoring the implementation of the
convention or the settlement of disputes.

However, despite their undeniable usefulness, such provisions are still quite rare in
multilateral environmental treaties. Among the few instances, one might recall the 1958
Convention on Fishing and Conservation of the Living Resources of the High Seas and the
more recent 1982 Convention on the Law of the Sea and 1995 Straddling Fish Stocks
Agreement.

Complaints
A complaint may be filed against a member state for not complying with a ratified
convention by another member state which ratified the same convention, by a delegate to the
International Labour Conference or by the Governing Body in its own capacity.
Upon receipt of a complaint, the Governing Body may form a Commission of Inquiry,
consisting of three independent members, which is responsible for carrying out a full
investigation of the complaint, ascertaining all the facts of the case and making
recommendations on measures to be taken to address the problems raised by the complaint.
A Commission of Inquiry is the ILO's highest-level investigative procedure; it is generally
set up when a member state is accused of committing persistent and serious violations and
has repeatedly refused to address them. To date, 11 Commissions of Inquiry have been
established.
When a country refuses to fulfill the recommendations of a Commission of Inquiry, the
Governing Body can take action under article 33 of the ILO Constitution.
Article 33 states that "in the event of any Member failing to carry out within the time
specified the recommendations, if any, contained in the report of the Commission of Inquiry,
or in the decision of the International Court of Justice, as the case may be, the Governing
Body may recommend to the Conference such action as it may deem wise and expedient to
secure compliance therewith ."Invoked only once in ILO history in 2000, in the case of
Myanmar

Case Study

Myanmar Case Study: Forced Labour

The fundamental right to be free from forced labour is linked to the need for an enabling
environment for freedom of association and collective bargaining. An important example of
the impact of supervisory mechanisms can be seen from the long-standing engagement on the
issue of forced labour in Myanmar and the efforts taken to promote its elimination. This has
resulted in significant improvements in the legislative framework.
For a number of years, the Committee of Experts on the Application of Conventions and
Recommendations had made comments on violations of the Forced Labour Convention, 1930
(No. 29) in Myanmar. A Commission of Inquiry was appointed by the Governing Body in
March 1997 under article 26 of the ILO Constitution and this was followed by the adoption of
a resolution by the International Labour Conference which aimed to ensure measures to
address the perpetuation or extension of the system of forced or compulsory labour referred
to by the Commission of Inquiry. The cooperation between the ILO and the Government was
strengthened in 2001 through the signing of an Understanding to allow a high-level team to
assess the realities of the forced labour situation in the country and the appointment of an ILO
Liaison Officer in Myanmar.

A complaints mechanism was established in a Supplementary Understanding between the

ILO and the Government in 2007 aimed at giving victims of forced labour the opportunity to
channel their complaints to the competent authorities with a view to seeking redress.
Following the repeal of the Village Act and Towns Act of 1907, which was specifically
requested by the Commission of Inquiry, the Committee of Experts also welcomed positive
developments in the application of the Forced Labour Convention by the Government, and
encouraged it to pursue on-going efforts towards the elimination of forced labour in all its
forms, both in law and practice.

The Committee of Experts welcomed the passage of the Labour Organization Law which
addressed gaps in the legislative framework in relation to the right of workers to form and
join organizations of their own choosing. When in force, the Labour Law will provide that
newly formed workers organizations will be in a position to exercise fully their trade union
activities, including with a view to playing their part towards the full and effective
elimination of forced labour. As a result of recent progress, the International Labour
Conference in 2013 decided to discontinue the special measures put in place to secure
observance by the Government of Myanmar of its voluntarily undertaken international
obligations.

Conclusion

In order to achieve the goals of ILO, raise awareness and to create bridges between states,
employers and employees, ILO has crucial and unquestionable place owing to its power on
member states. Eight Conventions have been designated by the ILO as “fundamental,” with
“particular significance both as human rights and enabling conditions for the achievement of
other ILO strategic objectives, and for the creation of decent jobs” The ILO has a
comprehensive and long-standing supervisory system, with a range of different and mutually
reinforcing mechanisms.

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