Articles

Universalization of Minimum Wages As A Pipe Dream: Many Discontents of the Code on Wages, 2019

-Saurabh Bhattacharjee 

The Code on Wages, 2019 (‘Code’) seeks to universalize the law on minimum wages in India by removing the distinction between scheduled and non-scheduled employment that has been central to the application of the Minimum Wages Act, 1948. The Union Ministry of Labour and Employment claims that the elimination of this dichotomy will extend the protection of minimum wages law to more than an estimated fifty crore workers. This paper posits that the goal of universalization of minimum wages may remain a pipedream due to several explicit exclusions, definitional limitations, and ambiguities in the Code. As a result, not only would many wage workers still remain outside the ambit of minimum wages protection, the coverage of domestic workers, who were earlier covered under the Minimum Wages Act, 1948, may also be imperilled. Further, the exclusion of employment guarantee programmes from the ambit of the provisions on minimum wages also contravenes the constitutional prohibition against forced labour under Article 23. In addition, the Code also fails to address some of the critical structural barriers in the labour economy that have impeded the implementation of minimum wages law so far. This paper argues that the Code’s failure to recognize an entitlement to minimum wages for every wage worker and address the systemic hurdles in the payment of minimum wages undermines the goal of universalization of minimum wages as well as the constitutional mandate on payment of minimum wages.

"The Right to Have Rights": Assam and the Legal Politics of Citizenship

-Padmini Baruah

The historical contestations around documentary citizenship in Assam have led to a situation where people from ethnoreligious minority groups find themselves at the fringes of citizenship. Through a closer look at case law being played out before Assam’s citizenship tribunals, this article seeks to explore the arbitrary bureaucratic barriers that are depriving people of their crucial right to access all other rights. This is framed in the context of the historical developments that have led to conflicts around identity in the region. Through my research, I argue that the use of documentation has served specific political goals which work in tandem with existing vulnerabilities to disenfranchise those who are already disadvantaged.

The Demand Side of the Rule of Law: India’s Experience With Eminent Domain Law Reform

This paper places the issue of land acquisition within a rule of law framework and analyses the national level reform of India’s Land Acquisition Act, 1894. While orthodox approaches to legal reform have placed a strong emphasis on state-centric ‘supply-side’ factors, more recently it is the constituencies within society that call for and enforce limitations to the exercise of state power that have been highlighted in the context of rule of law reform strategies. The rule of law seeks to restrain government action through law. In the context of its relevance to economic development, it is seen as a protection of private property against arbitrary expropriation by the state. Eminent domain, on the other hand, is the state’s legal power to take possession of an individual’s property for the purposes of undertaking state-led development projects. Both of these legal precepts, the rule of law as well as eminent domain, are in their own right seen as enablers of a nation’s economic development. However, in the context of the ongoing global land rush, it is argued that they can be at odds with one another. This paper illustrates how an attempt at eminent domain action came in conflict with rule of law principles in the specific case of the compulsory acquisition of agricultural land in rural West Bengal in India. A broad-based social movement against this land acquisition sparked the passage of a new land acquisition law in 2013. Specifically, it is argued that this legal reform resulted from a legal empowerment process involving both, rights-based legislation and the activism of non-state agents. Illustrating this case of demand for the new land acquisition law, its substantive provisions, and subsequent legal and political developments in relation to the 2013 Act, this paper concludes with critical reflections on the potential of legal empowerment and demand-side strategies to contribute to long-term and sustainable legal reform in pursuit of the ‘rule of law’ ideal.

Criminal law has been a significant site of reform in the context of sexual violence in India. Beginning with the amendments in 1983, several Supreme Court decisions and legislations have brought changes to the rape law. The paper uses findings from an eight-week long ethnographic study of rape trials in Lucknow’s Fast Track Court to argue that the legal changes have had little impact on the trial discourse. The author observed 95 rape trials, interviewed 12 lawyers, and conducted focus group discussions at 12 police stations in Lucknow. The paper exposes a chasm between the written formal law and the operational law in Lucknow’s lower court. The paper also demonstrates the narrow understanding of ‘real’ rape amongst lawyers and police personnel involving stranger rapes resulting in serious injuries. Further, the paper uses two case studies from the ethnography to reveal the normalization of sexual violence in acquaintance rapes, resulting from a narrow conception of what constitutes ‘real’ rape. It is finally argued that the transformative potential of criminal law for sexual violence is rather limited. The paper concludes by advocating for strategies outside of criminal law to combat sexual violence.

Contents of Volume 16(2)

2020

-Neetika Vishwanath

-Tvisha Shroff