The Hindu Editorial Analysis | 6th August’19 | PDF Download

• The Centre’s proposal to replace 44 labour laws with four codes saw the light of day after Finance Minister Nirmala Sitharaman announced it in her Budget speech. The question not being asked is: aren’t these codes antithetical to the very idea of statutory protection of labour and dignified standard of living for workers? It needs to be stated here that the original labour laws, enacted after decades of struggle, were meant to ensure certain dignity to the working-class people.
• The most glaring instance of the government’s failure to support labour standards is the Ministry of Labour’s proposal to fix the national minimum floor wage at ₹178, without any defined criteria or method of estimation. This could lead to a dangerous race to the bottom by individual States, in a bid to attract capital and investments. This is rightly being called ‘starvation wage’, especially given that the Ministry’s own committee recommended ₹375 as the minimum.
• Another concerning issue is that the four codes exclude over 95% of the workforce employed in informal units and small enterprises, who in fact are in greater need of legal safeguards.

Ambiguity on wording

• Above all, there is a deliberate ambiguity maintained on wording and definitions. There is no clarity on who constitutes an ‘employer’, an ‘employee’ or an ‘enterprise’, giving the owner greater discretion to interpret the provisions while making it more difficult for the worker to draw any benefits from them.
• To minimize wage bills and compliance requirements, it is proposed that ‘apprentices’ be no longer considered employees, at a time when evidence indicates that apprentices are made to do jobs of contractual as well as permanent employees. The code even has a provision on “employees below fifteen years of age”, which can be construed as legalization of child labour.
• The code on wages legitimizes and promotes further contractualisation of labour, instead of abolishing it, by insulating the principal employer from liabilities and accountability in the case of irregularities on the part of the contractors.
• Slavery-like provision
• And if all this were not enough, the wage code also brings back the draconian provision of “recoverable advances”, a system that the Supreme Court clearly linked to coercive and bonded labour, wherein distressed and vulnerable migrant labourers could be bonded to work through advance payments. This is akin to modern forms of slavery, also encountered in rural labour markets.
• Similarly, the eight-hour workday shift has been done away with, and multiple provisions of increased overtime have been inserted. The code also gives ample alibis to employers to evade bonus payments.
• Further, seeking justice against unfair practices of employers has become even more difficult now as non-payment of wages will now not be a criminal offence and penalties in case of noncompliance have been reduced. The government wants to provide a “facilitative” rather than a regulatory and punitive environment for the owners, with “facilitators-cum-inspectors” replacing the “inspectors” who used to ensure implementation of various labour laws to aid employees.

• Finally, the code on industrial relations too is replete with restrictions, on forming or registering unions, calling a strike (which would entail prior permissions and notices) and seeking legal redressal for workers.
• To sum it up, it won’t be a fallacy to assert that the proposed laws, as they stand, resemble ‘employer codes’ rather than ‘labour laws’.
• In 1948, the tallest leader of Jammu and Kashmir, Sheikh Abdullah, greeted Prime Minister Jawaharlal Nehru at Lal Chowk, Srinagar, with a couplet from the Sufi poet, Amir Khusro: “Mun tu shudam tu mun shudi,mun tun shudam tu jaan shudi; Taakas na guyad baad azeen, mun deegaram tu deegari (I have become you, and you me, I am the body, you soul; So that no one can say hereafter, that you are someone, and me someone else”). Five years later, Abdullah was dismissed from office and interned on the instructions of Nehru. Since then the body of Kashmir and the soul of the rest of the country have cohabited restlessly.
• On Monday, August 5, 2019, the Narendra Modi government made arguably the most audacious decision of its tenure and probably the boldest decision made by any government on Kashmir since Indira Gandhi arrived at a modus vivendi with Sheikh Abdullah in 1975. By moving to revoke the ‘special status’ granted to the State under Article 370, and by reorganizing the State into two Union Territories — Jammu and Kashmir and Ladakh —it demonstrated unprecedented chutzpah, but it may have unleashed a chain of events difficult to predict or contain. For one, while even the founding fathers recognized that Article 370 was a transitional or temporary provision, there was a clear subtext; that its revocation would only happen once the acquiescence of the people of the State was obtained.
• There is no doubt that the move will be legally challenged on grounds of procedural infirmities and, more substantively, that it undermines the basic feature of the compact between Delhi and Srinagar that was agreed upon in 1947.
• But beyond the legality, the real test will be on the streets of Srinagar, Jammu and Delhi once the security cordon is lifted from the State. What was unbecoming is the unwillingness to enter into consultation with the mainstream political leaders; in no other State would former Chief Ministers have been dealt with so cavalierly. Similarly, the impression that the move on Article 35A is designed to engineer demographic change rather than to protect the rights of women and other marginal groups of the State, will need to be corrected.

A mirror to geopolitics

• The move is clearly embedded in the larger geopolitics of the region and the manner in which regional alliances are marginalizing Indian interests in the heartland of the region. With the United States seeking a quick exit from, and willing to let the Inter-Services Intelligence-sponsored Taliban to control Afghanistan (and China deeply embedded in the power play), the heartland of central Asia has rarely been as adverse to Indian interests since 1989, when the Soviet Union withdrew from Afghanistan. Kashmir could, in these circumstances, become even more vulnerable to external elements than it was in the 1990s.
• On top of it, the new camaraderie between U.S. President Donald Trump and Pakistan Prime Minister Imran Khan and the repeated ‘offer’ by Mr. Trump to meditate in Kashmir may have precipitated the decision, which would, however, have in any case taken months of preparation. A decision to cancel the Amarnath yatra and take hard decisions, with both domestic and international ramifications, suggests that the government believed that a settlement in Jammu and Kashmir and its ‘pacification’ was vital for India’s national security. This was, of course, a marked departure from recent history.

• The Gupkar model
• Internally, for nearly 70 years, New Delhi managed Jammu and Kashmir (or more precisely the Kashmir Valley) through Srinagar’s Gupkar Road. Gupkar Road became a metaphor for the Centre’s approach, historically, towards Kashmir. New Delhi’s follies and its firmness; its cleverness and its calculations; its vacillating largesse and its ubiquitous Leviathan-like presence, were part of Gupkar’s landscape and legacy. Gupkar Road is the meandering gateway to the vistas of the Dal Lake, which runs from the desolate offices of the United Nations Military Observer Group in India and Pakistan at Sonwar to the fading charms of erstwhile royal palaces on the banks of the lake. It is here that security agencies are nested in close comfort with the political and business elite, and where interrogation centres have morphed into “haunted” guest houses.
• As a model, Gupkar Road reflected itself in a series of policies that had become predictable; a network of patronage and power that had been gamed by friends and adversaries alike. It sustained a politics of entitlement; be it politicians or newspaper editors or bureaucrats who were kept in good humour on the basis of some chimera-like national interest. The Gupkar model, it was obvious, had become redundant and counter-productive and had incentivized bad politics and the attendant rent seeking and other despicable forms of corruption.
• Now, shorn of its ideological fervour, what is seemingly being put in place is a new audacious plan beyond the constitutional interventions. As a start, the Modi plan is fundamentally about directly reaching out to the people without the mediation of either separatist groups or mainstream politicians.
• Grass-root reach
• Reaching out to the people is seen as being best done by empowering local democracy to its fullest. In the past, the devolution of powers to the panchayats and urban local bodies carried little popular appeal with elected members of the Legislative Assembly, who saw this as directly eroding their authority and had a vested interest in centralizing power. One of the key factors, it may be recalled, behind the Centre’s disconnection with the Mehbooba Mufti government was its continued unwillingness to hold elections to local bodies.
• Since the imposition of Governor’s (and now President’s) Rule, the State Administrative Council has acted with remarkable alacrity to devolve powers to panchayati raj institutions in the State. Implementation of important schemes such as the Mahatma Gandhi National Rural Employment Guarantee Act, the Pradhan Mantri Awas Yojana, the Mid-Day Meal scheme, Integrated Child Development Services and social forestry projects has been devolved to the panchayats.
• The monitoring and supervision of schools and health institutions has also been passed on to the panchayati raj institutions. In addition, panchayats shall also be conducting a quarterly social audit of works and programmes in their area.
• Almost in parallel is the Savonarola-like campaign against corruption where no one — powerful or influential — is ‘untouchable’ or beyond the scope of investigation by law enforcement agencies, but directed at the power elite of the State.
• Graft crackdown
• Corruption is thus being addressed not just at the fringes; but the very core of a rotten system is now being targeted where a few families are seen to have usurped power and economic benefits — not just in Kashmir but in Jammu as well. Indeed, almost every popular survey in Jammu and Kashmir reveals that one of the leading causes of youth angst and alienation was nepotism and corruption among the ruling elite.
• This anti-corruption drive is accompanied by attempts to fast track development to create institutions of academic and extra-curricular excellence and to generate skilled employment in a manner that the youth are gainfully employed and weaned away from radical thought. This, of course, is easier said than done.
• In the interim, the new doctrine will have to persuade the majority of the people of Jammu and Kashmir that greater integration with India will provide them with more opportunities, provide more freedom and space, and strengthen their rights much more than the alternatives proposed by other mainstream parties or separatists.
• Will the Modi plan lead to greater harmony between New Delhi and Srinagar, bringing enduring peace to the body and the soul? If it does, it will have performed an extraordinary national service and resolved one of New Delhi’s greatest challenges. For the moment, however, we have to live with the uncertainty that is germane to all high-risk, almost adventurous undertakings.

A wrong way to end

• The special status of J&K was never meant to be permanent, but it should not have been scrapped without wider consultations
• Jammu and Kashmir has been a theatre of muscular Hindutva nationalism, in the early decades in script and since 2014 in performance. Adopting a highly militarist approach to separatism, and shunning political process entirely since 2014, the BJP has now delivered on a promise it has long made, by abrogating the special status that Jammu and Kashmir had enjoyed in the Constitution through a combination of executive and parliamentary measures. Additionally, the State is being downgraded and divided into two Union Territories. The mechanism that the government used to railroad its rigid ideological position on Jammu and Kashmir through the Rajya Sabha was both hasty and stealthy.
• This move will strain India’s social fabric not only in its impact on Jammu and Kashmir but also in the portents it holds for federalism, parliamentary democracy and diversity.
• The BJP-led government has undermined parliamentary authority in multiple ways since 2014, but the passing of legislation as far-reaching as dismembering a State without prior consultations has set a new low.
• The founding fathers of the Republic favoured a strong Centre, but they were also prudent in seeking the route of persuasion and accommodation towards linguistic and religious minorities in the interest of national integration. The centralizing tendencies increased in the following decades, but Hindu nationalists always argued for stronger unitary provisions and viewed all particular aspirations with suspicion. For them, Jammu and Kashmir’s special constitutional status was an impediment, not an instrument, for the region’s integration with the rest of the country.
• The entire exercise of getting Article 370 of the Constitution effectively abrogated has been marked by executive excess. The first step was to declare by a presidential decree that the ‘Governor’ — without regard to the fact that he has no Council of Ministers now to aid and advise him — can speak for the State government and give his concurrence to any modification in the way the Constitution of India applies to Jammu and Kashmir. Second, on the basis of this ‘concurrence’, the latest Presidential Order scraps the previous one of 1954, abrogating the separate Constitution of Jammu and Kashmir. Third, the fact that the State is under President’s Rule has been used to usher in a new dispensation under which Jammu and Kashmir becomes a Union Territory with a legislature and Ladakh another such territory without a legislature. In sum, a purported process to change the constitutional status of a sensitive border State has been achieved without any legislative input or representative contribution from its people. The bifurcation of States in the past cannot be cited as a binding precedent as, under Article 3 of the Constitution, the President seeks the views of the legislature of the States concerned, even if concurrence is not mandatory. In the present scenario, J&K has been represented by an unelected Governor appointed by the Centre, while Parliament has ventured to ratify the conversion of a State into two Union Territories without any recommendation from the State.
• If there is a legal challenge to these measures, it would centre around whether such far-reaching steps could be achieved in the absence of a representative government by assuming that its gubernatorial administrator is constitutionally capable of using his consent as that of the entire State. Further, there is a self-enabling aspect to the Presidential Order. It performs a hop-step-and-jump feat.
• It hops over the requirement of the State government’s consent by declaring that the Governor is the State government. It steps over the need for aid and advice by the ministerial council by saying the Governor’s opinion is enough. And it jumps over the fact that there is no constituent assembly now by merely reading the term as ‘legislative assembly’, and letting Parliament perform the role of the State legislature. Thus the President’s power under Article 370 has been used both to create an enabling provision and to exercise it immediately to modify the Order, thereby dispensing with the role envisaged for the State Assembly. While it is true that in 1961 the Supreme Court upheld the President’s power to ‘modify’ the constitutional provisions in applying them to J&K, it is a moot question whether this can be invoked to make such a radical change: a functioning State has now been downgraded and bifurcated into two Union Territories. It is inconceivable that any State legislature would ever have recommended its own demotion in status.
• True, the special status of J&K was meant to end, but only with the concurrence of its people.
• The Centre’s abrupt move disenfranchised them on a matter that directly affected their life and sentiments. Moreover, that this was done after a massive military build-up and the house arrest of senior political leaders, and the communications shutdown reveals a cynical disregard of democratic norms. It appears that the current government values J&K for its demonstrative impact before the rest of the country, as a place where a strong nation and its strong leader show uncompromising political will. But that may have other unintended consequences.
• Geographically and metaphorically, Jammu and Kashmir is the crown of secular India — a Muslim majority region in a Hindu majority country. Its people and leaders had chosen secular India over Islamic Pakistan, a fact that Islamists never reconciled with. The BJP’s adventurous route also has as backdrop an impending U.S. withdrawal from Afghanistan that will trigger an unforeseeable churn in Islamist politics in the region. Islamists have always viewed Kashmir as a component of their global grievances. Whatever its intent in enabling the full integration of Jammu and Kashmir with India, Monday’s decision to alter the State’s status could have unintended and dangerous consequences.

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