Finding The Plan In The National Action Plan On Business and Human Rights?
None of these ten indices talks about workers, collective bargaining or resettlement and rehabilitation of communities displaced by the business.
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The country is celebrating its significant jump in the ranking of the Ease of Doing Business Index. The ten indices of the Index are all about ease in investing. In fact, two indicators are titled – protection of investors and resolving insolvency. None of these ten indices talks about workers, collective bargaining or resettlement and rehabilitation of communities displaced by the business. While quoting the Index Ranking in her budget speech, the Finance Minister did not use the word “labourer” or “trade union” even once. The term “worker” was used once for Anganwadi workers. Interestingly, she also quoted Auvaiyar, a poet from the Tamil Sangam era, stating “Bhumitiruthi Unn”, meaning “first till one's land and then eat”. In the absence of wage and social security protection of workers, they just work, with little to eat. Probably now, there is less work as well since the unemployment rate at 6.1 per cent (PLFS, 2017-18) is the highest it has been in the last 45 years.
Interestingly, the Ministry of Corporate Affairs is evolving a National Action Plan (NAP) on Business and Human Rights. In fact, the ministry last week announced the constitution of an Advisory Committee to guide and inform the formulation of the NAP as well as address gaps through the NAP agenda.
Although the zero drafts of the plan merely list all laws and provisions, the draft highlights the state-business nexus, collective bargaining and even leveraging public procurement. A decade ago, businesses were scared of the term Human Rights. This, however, isn’t the case anymore. A study by Corporate Responsibility Watch (CRW) says that 93% of sample 150 top-listed companies claim they have policies on human rights and 71% even claim that they organise the independent evaluation of these policies. The institution of Business Responsibility Reports, a reporting mandated by SEBI based on National Guidelines on Responsible Business Conduct (NGBRC), has at least brought up human rights in board rooms.
Extensive consultations have found a growing feeling that NAP would be a non-starter. The fears are the following: One, it would just list the existing legislation and refrain from setting any legislative agenda that would harm the interests of investors. According to the CRW study, only 31% disclose their commitment to child labour free workplace in their supply chain, and we know child labour laws are diluted. The study says only 50% of companies of the top 300 listed companies seem to have any kind of workers’ associations. It is well-known that the proposed Labour Code Bill will introduce a clause which will make way for the government or an authorised officer to institute a negotiating council if there is no union with the support of 75% of the workers on the rolls of the establishment. Can NAP reverse the direction of these laws?
Two, with respect to business responsibility, NAP would refrain from using a regulatory approach. Rather, it would suggest ‘creating awareness among businesses on the need to integrate human rights’. Further, it would, as usual, provide for “business-case” specificity for businesses to implement human rights, rather than clearly stating that human rights are non-negotiable. Will NAP support creation of a mandatory human rights due-diligence system in the supply chain, including the extension of the right to information to large business enterprises?
Three, the absence of diversity in the workplace is not yet seen as a priority. 53% of top 300 companies have a male to female ratio of 10:1 or worse. Among 83 board members of top 10 listed companies (whose surnames revealed their castes), 77 belonged to Brahmin, Kshatriya, Kayastha, Jain or Parsi – none from the Dalit or Adivasi community. Will NAP shy away from taking affirmative action in the private sector a reality?
Four, the weakest link has been the remedy system. 15 protestors were shot dead for protesting against the Sterlite plant in Tuticorin. They were protesting in the first place because the remedy system failed. It was their killing that forced the government to ban the functioning of the plant and not the adverse impact of the plant operations as should have been the case. A Thompson Reuters Foundation study found that all 100 interviewed women contractual workers, in the absence of adequate paid leave, get un-labelled drugs at work for menstrual cramps. The British Safety Council, using ILO numbers, found that about 48,000 workers die of occupational accidents in India every year. Will NAP create a responsive remedy system both within the company eco-system and the State? Will NAP mandate the National Human Rights Commission to take up cases of business and human rights?
The NAP is not going to be created in a vacuum. It has to engage with the power struggle between the interests of investors and of workers; of corporates and of displaced communities; of GDP growth and of reducing inequalities. There are multiple challenges. NAP needs a comprehensive national baseline on all critical issues related to business. What is needed is for the government to see this as an opportunity to promote human rights in business; and for CSOs to build pressure on the State and promote interests of the community, human rights defenders, trade unions and marginalised identities.
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