A Bill was tabled recently in the Tamil Nadu Legislative Assembly by the Labour Welfare and Skill Development Minister, V Ganesan, amending the Tamil Nadu Shops and Establishments Act, 1947, to insert a new section, 22-A. The new provision makes it mandatory for shops and establishments, including textile stores and supermarkets, in the state to provide mandatory seating facilities on the premises for all employees so that the employees may take advantage of any opportunity to sit, which may occur in the course of their work and thereby avoid ‘on their toes situation throughout the working hours’.
The Bill is viewed as a progressive step in labour empowerment and welfare state goals, with the object of it, purported to be to provide seating facilities to all employees in shops and establishments, since persons employed there are made to stand throughout their duty time which results in varied health issues. The Bill, interestingly, has its origins from the ‘right to sit’ movement in Kerala which started in the year 2010, spearheaded by a women’s union called AMTU, which was set up by Viji Penkoottu, the leader of another women’s collective, called Penkoottu. The battle was a hard-fought one by the working-class women in Kerala and the movement reached its peak leading to statewide protests in the year 2018, which persuaded the then government of Kerala to promulgate an ordinance providing seating arrangements and later the government enacted a new section 21-B of The Kerala Shops and Commercial Establishments Act,1960, making it mandatory for employers of shops and establishments to make seating arrangements.
The issue with the provision 22-A lies in its wording, which starts with a “shall”, meaning that every establishment shall mandatorily make suitable seating arrangements for all employees but even after being provided with seating, the employees may still not be able to sit due to the use of the word “may” which implies that the employees can sit only if there is an opportunity ( as to what kind of opportunity is meant remains unknown), which may occur during the course of their work. This provision seeks to benefit people mostly in the textile industry who are made to stand the entire day without even being provided with breaks to use the facilities.
The problem with these kinds of social legislation is that the enforcement of the provision is left unchecked, even the penalties for violations are meager and the aggrieved persons are left with a cumbersome process of consulting unions, writing representations to authorities, which in most cases never see the light of the day due to the might and clout of the employers.
The Bill also seeks to effectuate the goals of a welfare state provided in Directive Principles of State Policy(DPSP) contained in Article 42 of Part-IV of the Constitution of India, which embodies that the state shall make provision for securing just and humane conditions for work and for maternity relief. The state has given effect, ostensibly, to the directive by providing humane working conditions such as seating arrangements to the employees at their premises.
Curiously, as per article 37 of the Constitution of India, Directive Principles of State Policy are non-justiciable rights and hence cannot be enforced in a court of law. The issue with regard to legislations that seek to give effect to the Directive Principles is that they suffer from the constitutional infirmity of non-enforceability. Indian Jurist, HM Seervai said that the Directive Principles are nothing more than political exhortations to the legislature, and can only be “enforced” at the ballot box.
The new Bill which seeks to provide mandatory seating arrangements seems progressive on paper, but the fact that it remains unenforceable dilutes its true goals and the intention of the legislature.
Article 21 has been the gateway for a plethora of rights emanating vide judicial review of which, ‘right to health’ is a part. The Apex court in the case of ‘Francis Coralie Mullin vs The Administrator, Union (1981)’ held that “It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21”. The Apex court ‘In CERC vs. Union of India(1995)’ held that the ‘right to health’ of a worker is an integral facet of meaningful right to life, which means to not only have a meaningful existence but also robust health and vigour without which a worker would lead a life of misery, and lack of health denudes the livelihood of the employees. The court went on to state that the compelling economic necessity of the employees is the reason for them to work in an industry exposed to health hazards. Poverty being the driving force and need to provide for themselves and their dependents, and this selfless act should not be at the cost of the health and vigour of workers.
In ‘CESC Ltd. vs. Subash Chandra Bose(1992)’ the Apex court held that the ‘right to health’ is a fundamental human right for workers and the maintenance of health is the most imperative constitutional goal. The international jurisprudence also embodies the ‘right to healthy working conditions’ provided in Article 7 of the International Covenant on Economic, Social and Cultural Rights, which was ratified by India in 1979. Prolonged standing at work has been proven to be associated with numerous health outcomes such as Achilles tendons, restricted blood flow, and varicose veins, these health issues directly impact the health of a person, depriving them of essential faculties in the long run, thereby infringing on their right to a healthy life, which is a concomitant of ‘right to life’ under Article 21 of the Constitution of India.
Both the International Instruments and the jurisprudence of ‘right to health’ under Article 21 make it clear that ‘right to sit’ forms an integral form of ‘right to life’.
The new provision is believed to be a panacea for the hitherto unjust working conditions of workers, but the provision is filled with issues when it comes to enforcing it and also gives much leeway to employers in flouting the mandate of the provision. Moreover, even from a legal standpoint, the provision which is a statutory right imposed on the state carries lesser legal weightage than it does if it is a fundamental right.
The provision is suffused with ambiguities and defects, making the provision yet another ambitious social welfare move by the state government. It is high time that the constitutional courts explicitly declare ‘right to sit’ as a fundamental right, giving it its due recognition under Article 21, thereby, making the enforceability of the right a reality for millions of employees, which then will lead the state to attain the goals of a welfare state.
R Shrrivatsav and Suaib Meeran are advocates practicing at the Madras High Court.