The ILO's Influence on Indian Labour Legislation

What that does to a government is easy to underestimate. A government which regards a proposed standard as premature cannot simply ignore it. It must place it before Parliament, on a timetable, and then report internationally on what happened. The subject is put on the domestic agenda by an external timetable rather than a domestic one, and it is put there in public.

And the pressure is not only external. The Indian delegation that voted at Geneva included an Indian workers' delegate and an Indian employers' delegate, each voting individually under article 4(1). When the Convention comes home, the domestic debate already has two organised Indian constituencies that took a position on it. The ILO's method therefore manufactures a domestic lobby as a by-product of the international vote.

India's participation is old, and a court has noticed its effect.

Jay Engineering Works Ltd. v. State of West Bengal, AIR 1968 Cal 407, a Full Bench of the Calcutta High Court.

Facts. Workers of the company's Calcutta sales office, with retrenched employees, repeatedly surrounded and confined the manager and other officers, for thirty-three hours in March 1967 and again in April and May, while the police took no action under two State Government circulars. The company moved the High Court under Article 226. Because the case required the Court to decide whether such conduct was lawful in an industrial dispute, it began by tracing how India came to have industrial legislation at all.

Held, on that historical question. Before the First World War there was no industrial legislation in India and the idea of settling industrial disputes by legislation was not known, the ordinary principles of master and servant governing the relations of employer and employee. During the war manufacturers made phenomenal profits and there was a significant increase in the employment of industrial labour. The holding of the International Labour Conference at Washington in 1919, in which India participated, raised the consciousness of labour to their own plight. The spasmodic occurrences of strikes then led to an important amendment of the Factories Act in 1922.

Why it matters here. It is a court's own account of the ILO as a cause of Indian labour legislation, which makes it the safest single authority for this topic. The case is worked at length for its holding on the limits of the criminal immunity in [The Legal Impediments: Conspiracy and Restraint of Trade]; it is cited here for its history.

Channel two: the tripartite method, imported wholesale

The ILO's most transferable idea was not any particular standard. It was the way the standard is made: government, employers and workers in one room, each speaking for itself.

India adopted that method domestically. The Indian Labour Conference is India's own tripartite forum, and its consensus has repeatedly preceded legislation rather than followed it.

There is a documented instance of this in one of the very Acts this Code repealed, and it is worth quoting because it is primary material rather than commentary. The Industrial Employment (Standing Orders) Act 1946, in its own introduction, explains its origin in these terms: that the economic law of demand and supply had been assumed to secure fair terms, that the working of that law belied the assumption, that workers accordingly organised themselves in trade unions and insisted on collective bargaining, and that, recognising the rough deal being given to workers by employers who would not define their conditions of service, the legislature intervened. It then says, of the central idea of the Act:

Discussion on the subject at the tripartite Indian labour Conference revealed a consensus of opinion in favour of standing orders in all industrial establishments employing one hundred or more workers.

Read what that sentence actually records. The statutory requirement that an employer must define and certify the conditions of service, which is the whole of what is now Chapter IV of the Code, was settled at a tripartite conference before it was settled in Parliament. The threshold, one hundred workers, came out of the same discussion. That is the ILO's method operating on Indian soil and producing an Indian statute.

The same method produced the Codes themselves. The Statement of Objects and Reasons of the Code on Wages 2019 records that the Second National Commission on Labour, which reported in June 2002, recommended that the existing set of labour laws be broadly amalgamated into groups covering industrial relations, wages, social security, safety, and welfare and working conditions; and that in pursuance of those recommendations and of the deliberations made in the tripartite meeting comprising the Government, employers' and industry representatives, it was decided to bring the proposed legislation. The four Labour Codes of 2019 and 2020, including the Industrial Relations Code this book teaches, are the direct product of that grouping.

Channel three: the Constitution of India adopted the ILO's aims

This is the channel students most often miss, and it is the one that gives the influence permanence.

The Constituent Assembly wrote into Part IV of the Constitution, as Directive Principles of State Policy, a set of obligations that read like the Declaration of Philadelphia turned into domestic constitutional language. They are not enforceable in a court, but they are, in the Constitution's own words, fundamental in the governance of the country and it is the duty of the State to apply them in making laws.

Article 43A repays attention, because it dates the influence rather than merely illustrating it. It was inserted by the Constitution (Forty-second Amendment) Act 1976, with effect from 3 January 1977. Worker participation in management is an ILO preoccupation of long standing, and India wrote it into its Constitution in the 1970s. The Code's own bi-partite forums, the Works Committee in section 3 and the Grievance Redressal Committee in section 4, are what article 43A looks like once it reaches a statute.

Two other constitutional provisions belong in the answer.

Articles 23 and 24 are fundamental rights, not directives, and they are enforceable. Article 23 prohibits traffic in human beings and forced labour. Article 24 prohibits the employment of a child below fourteen years in any factory or mine or in any other hazardous employment. Those subjects, forced labour and child labour, are the oldest items on the ILO's agenda, and in India they are not policy but constitutional prohibition.

Article 51(c) provides that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. It is the general constitutional warrant for taking international obligations seriously.

And article 19(1)(c), the right to form associations or unions, is the constitutional footing of the whole of Chapter III of the Code. Its limits were settled in All India Bank Employees' Association, worked in an earlier chapter: it protects the formation of the union and not the achievement of its objects.

The mechanism, in one diagram of words

Geneva. The Conference adopts a Convention by a two-thirds majority. India's four delegates vote individually; the Indian workers' and employers' delegates have taken public positions.

Within twelve to eighteen months. India must place the Convention before the competent authority, article 19(5)(b), and report what happened, article 19(5)(c).

Domestically. The question is now on the table with two organised Indian constituencies already committed. It goes to the tripartite Indian Labour Conference, which is India's own copy of the ILO's method.

In the Constitution. Whatever Parliament decides in the particular case, the general programme has already been written into Part IV as a standing direction, so the argument for legislating is constitutional and not merely international.

In the statute book. The result appears as an Act, and eventually as a Code.

That is the answer to the exam question, and notice that at no point did the ILO make law for India. It set an agenda, supplied a method, and lent a vocabulary.

A worked example

The facts. Suppose the Conference adopts a Convention requiring that a worker facing dismissal be given a written statement of the ground and an opportunity to answer it. India's Government delegates abstain; India's workers' delegate votes in favour.

Step one. Within one year of the closing of the session, and at the outside eighteen months, the Union Government must bring the Convention before Parliament, because that is where competence over this subject lies, and must inform the Director-General which authority it treated as competent and what that authority did. Article 19(5)(b) and (c). Abstention at Geneva does not excuse it.

Step two. If Parliament declines to legislate, article 19(5)(e) leaves India with no further obligation beyond reporting at appropriate intervals. India is not in breach.

Step three, and this is the part that matters. Even if Parliament does nothing, the subject has been debated, the Indian workers' organisations have a position on record, and the matter goes to the Indian Labour Conference. That is how the Standing Orders Act's own hundred-worker threshold came to be settled before it reached Parliament.

Step four. The domestic argument for acting is not only "we promised at Geneva". It is article 42 of the Constitution, just and humane conditions of work, which is a direction to the Indian State that exists whether or not any Convention was ever adopted.

Now look at where the example lands in the Code. Chapter IV requires an employer to have certified standing orders which, among other matters, define the conditions of service and the disciplinary procedure, and section 38 fixes a time limit for completing disciplinary proceedings together with a liability to pay subsistence allowance while they run. That is the substance of the imagined Convention, arrived at domestically.

What this does NOT mean

It does not mean every Indian labour statute implements an ILO Convention. Many do not, and matching a particular Act to a particular numbered Convention is a claim that has to be checked against India's ratification record before it is made. This book does not make such claims, and a student writing in the exam should describe the mechanism and the constitutional reception rather than asserting numbered pairings they have not verified.

It does not mean a ratified Convention is enforceable in an Indian court. India is dualist. A treaty binds India in international law on ratification, and gives an individual rights in an Indian court only when Parliament has legislated.

It does not mean the Directive Principles are enforceable. They are not. Their force is that they are fundamental in the governance of the country and a duty on the State in making laws, and that courts read ordinary statutes in their light.

It does not mean the influence has been one way. Article 19(3) of the ILO Constitution requires the Conference to have due regard to countries whose climate, imperfect development of industrial organisation or other special circumstances make industrial conditions substantially different, and to suggest modifications for them. India has been one of the principal reasons that clause exists and is used.

Limits and criticism

Ratification lags behind adoption. Placing a Convention before Parliament is compulsory; ratifying it is not, and reporting on a refusal costs nothing.

A large part of the Indian workforce is outside the reach of any of this. The standards, the Codes and the constitutional directions operate mainly on organised industrial employment. The Code itself acknowledges this obliquely: section 23 makes special provision for Trade Unions in what section 2(zp) calls the unorganised sector.

The tripartite method assumes representative organisations. Where the employers' and workers' bodies consulted are not genuinely representative, the tripartite consensus is a consultation between the government and two of its own invitees.

And the Directive Principles have been criticised as a way of postponing. Article 41 is expressly qualified by the words "within the limits of its economic capacity and development", which is an argument for delay written into the direction itself.

Quick revision

• Three channels, and the answer needs all three: the obligation to lay the Convention, the tripartite method, the Constitution's adoption of the aims.
• Article 19(5)(b) of the ILO Constitution: bring every Convention before the competent authority within one year, exceptionally never more than eighteen months, whether or not the government likes it. 19(5)(e): if consent is refused, no further obligation but reporting.
• Jay Engineering Works, AIR 1968 Cal 407: before the First World War there was no industrial legislation in India and the master-and-servant principles governed; the 1919 Washington Conference, in which India participated, raised the consciousness of labour to their own plight.
• The Standing Orders Act 1946's own introduction: the standing-orders idea and its hundred-worker threshold came from a consensus at the tripartite Indian Labour Conference.
• The Code on Wages' Statement of Objects and Reasons: the Second National Commission on Labour, reporting June 2002, recommended amalgamating labour laws into five groups, and the Codes followed that plus tripartite deliberation.
• Constitution of India: article 19(1)(c) form unions; articles 23 and 24 forced labour and child labour, enforceable; Directive Principles 39, 41, 42, 43; and 43A, worker participation in management, inserted by the 42nd Amendment w.e.f. 3 January 1977; article 51(c) respect for treaty obligations.
• India is dualist: a ratified Convention is not by itself Indian law.

Test yourself

1. Discuss, in outline, the influence of the ILO on Indian labour legislation. It operates through three channels rather than through any power to legislate. First, article 19(5)(b) of the ILO Constitution obliges India to bring every Convention adopted by the Conference before its competent law-making authority within one year, or exceptionally not more than eighteen months, and to report to the Director-General what that authority did; the subject is therefore placed on the domestic agenda on an external timetable, in public, and with India's own employers' and workers' delegates already publicly committed by their individual votes at Geneva.

Second, India adopted the Organisation's tripartite method domestically in the Indian Labour Conference; the Industrial Employment (Standing Orders) Act 1946 records in its own introduction that the standing-orders requirement and its hundred-worker threshold came from a consensus reached at that tripartite conference, and the Statement of Objects and Reasons of the Code on Wages 2019 records that the four Codes followed the Second National Commission on Labour of June 2002 together with tripartite deliberation.

Third, the Constitution of India received the Organisation's aims into Part IV, in articles 39, 41, 42, 43 and 43A, and into Part III in articles 23 and 24, so that the case for labour legislation in India is constitutional and not merely international. Judicial notice of the influence was taken in Jay Engineering Works Ltd. v. State of West Bengal, AIR 1968 Cal 407, where the Calcutta High Court recorded that the 1919 Washington Conference, in which India participated, raised the consciousness of labour to their own plight.

2. Does India have to legislate whenever the Conference adopts a Convention? No. It must place the Convention before the competent authority within the article 19(5)(b) time limit and report under 19(5)(c). If the competent authority does not consent, article 19(5)(e) leaves no further obligation except periodic reporting. The obligation is one of process, not of outcome.

3. Which article of the Constitution directs worker participation in management, and when was it inserted? Article 43A, inserted by the Constitution (Forty-second Amendment) Act 1976 with effect from 3 January 1977. It directs the State to take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry. Sections 3 and 4 of the Industrial Relations Code, the Works Committee and the Grievance Redressal Committee, are its statutory expression.

4. Distinguish the constitutional provisions on labour that are enforceable from those that are not. Articles 23 and 24 are fundamental rights in Part III and are enforceable: article 23 prohibits traffic in human beings and forced labour, and article 24 prohibits the employment of a child below fourteen in any factory or mine or other hazardous employment. Articles 39, 41, 42, 43 and 43A are Directive Principles in Part IV and are not enforceable by a court; their force is that they are fundamental in the governance of the country, a duty on the State in making laws, and a guide to the interpretation of statutes.

5. Give one documented instance of tripartite consultation producing an Indian statutory rule. The Industrial Employment (Standing Orders) Act 1946 states in its own introduction that discussion at the tripartite Indian Labour Conference revealed a consensus of opinion in favour of standing orders in all industrial establishments employing one hundred or more workers. Both the requirement and its threshold were therefore settled tripartitely before they were enacted.

6. Why is it wrong to answer this question with a list of Indian Acts and their dates? Because the question asks about influence, which is a causal claim, and a list asserts the conclusion without showing the mechanism. The ILO has never legislated for India and cannot. An answer must show how an organisation with no legislative power changed the statute book: by compelling the question to be laid before Parliament on a fixed timetable, by supplying a tripartite method that India copied domestically, and by furnishing aims that the Constitution then adopted as standing directions to the State.