Articles On Labour Law 2024

BOOK ON GLOBAL SYMPOSIUM ON LABOUR AND EMPLOYMENT LAWS, 2024
NAVIGATING THE NEW LABOUR CODES: PERSPECTIVE OF ORGANISATIONS

AND GOVERNMENT AUTHORITIES
*KG DEVAIAH
ABSTRACT:
The New Labour Codes subsumes around 29 existing labour laws into four new codes, namely
the Code on Wages 2019, the Industrial Relations Code 2020, the Code on Social Security
2020, and the Occupational Safety, Health, and Working Conditions Code 2020. While the
Government perceives these codes as a reform intended to enhance the overall well-being of
employees across industries and facilitate ease of doing business for organisations by reducing
compliance burdens through the use of technology, critics have referred to them as “old wine
in a new bottle” citing a lack of substantial changes. Though the Government had an
opportunity to create a better working environment for both organised and unorganised
workforce through the new labour codes, it has failed to do the needful. This essay analyses
the impact of the new labour codes on organisations, primarily from a financial, operational,
functional, and employee standpoint of view. Furthermore, we delve into the changes an
organisation and its vendors have to make to align with the new wage structures, policies, and
processes under the codes while assessing the risks of non-compliance as compared to the
existing laws. We also examine the time and financial commitments organisations need to make
to implement the new labour codes, evaluate if statutory authorities possess the necessary
infrastructure for implementation, particularly in light of the absence of a labour inspector or
labour court, as well as address the concerns raised by various workers’ union and federation
of industries. While the implementation of the new labour codes presents challenges, it also
presents unprecedented opportunities for enhancing workers’ rights and welfare while
adopting a conducive environment for business growth. By addressing the challenges in
implementation and leveraging technological innovations, India can realise the full potential
of the new labour codes in promoting fair, inclusive, and sustainable economic development.
KEYWORDS:
New Labour Codes, Wages, Organisations, Statutory Authorities, Policies, Processes,
Workmen, Financial implications, Operational implications, Functional impact,
Employee impact, Risk and Penalties, Government Authorities, Industrial Tribunals,
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Facilitators, Inter-State Migrant Workers, Gig and Platform workers, Standing Orders,
Notification of rules, Implementation.
INTRODUCTION
While the existing labour laws date back almost half a century to close to a century, originating
primarily from the pre-independence era, they were tailored to meet the demands of the
industrial age with a socialist approach. As we transition into the 21 st century, there is a need
to reform the labour and employment arena in the country, given its critical role in shaping the
trajectory of our economy. With the evolution of every aspect surrounding the economy, it was
high time the government considered reforming some of the key labour laws in the country.
Intending to amalgamate and simplify the existing labour laws, ensuring ease of compliance,
leveraging digitization advancements India has made and striving for equality between
employers and employees, the Government decided to subsume around 29 existing labour laws
into four new codes, namely the Code on Wages 2019, Industrial Relations Code 2020, Code
on Social Security 2020, and the Occupational Safety, Health, and Working Conditions Code
2020. These four new labour codes apply to every industry irrespective of their size, it has also
brought in unorganised workforce such as construction workers and gig and platform workers
within its ambit, such is the widespread application it has sought to achieve.
While this move appears beneficial in providing employees across various industries with
rights and benefits under the law, its implementation has faced challenges with various factions
raising concerns about the impact of new labour codes on them. On one hand, some states are
yet to frame the rules, on the other hand, labour unions have raised objections about taking
away their right to collective bargaining and finally, the employers are concerned about the
significant cost associated with compliance, which they are not prepared for upon the new
labour codes coming into force.
Impact on organisations upon implementation of New Labour Codes:

For any organisation, the introduction of the new labour codes brings about significant financial
implications. Fundamental changes, such as the adoption of a new universal definition of
‘Wages’ are going to result in a substantial increase in cost and the need for more working
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capital at all times.1 Likewise, organisations will also see an operational impact, wherein there
would be a need to change policies, processes and operational protocols in alignment with the
new labour codes. Furthermore, there would be a functional impact, highlighting the
importance of change in management initiatives and a need to educate all the stakeholders
about the changes under the new labour codes. Finally, every single employee in the
organisation will see a change in their wage structure, allowance and statutory contributions as
well as benefits upon implementation of the new labour codes.
Financial Implications
A primary factor contributing to the substantial financial implications for organisations is the
new definition of ‘Wages’. Section 2(y) of the Code on Wages, 2019 defines ‘wages’ as
meaning all remuneration whether by way of salary, allowances or otherwise, expressed in
terms of money or capable of being so expressed which would, if the terms of employment,
express or implied, were fulfilled, be payable to a person employed in respect of his
employment or of work done in such employment, and includes-
(i) basic pay;

(ii) dearness allowance; and
(iii) retaining allowance, if any,
but does not include–
(a) any bonus payable under any law for the time being in force, which does not form part of
the remuneration payable under the terms of employment;
(b) the value of any house-accommodation, or of the supply of light, water, medical attendance
or other amenity or of any service excluded from the computation of wages by a general or
special order of the appropriate Government;
(c) any contribution paid by the employer to any pension or provident fund, and the interest
which may have accrued thereon;
(d) any conveyance allowance or the value of any travelling concession;
(e) any sum paid to the employed person to defray special expenses entailed on him by the
nature of his employment;
1
The Code on Wages, 2019 (19 of 2019) s 2(y).
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(f) house rent allowance;

(g) remuneration payable under any award or settlement between the parties or order of a court
or Tribunal;
(h) any overtime allowances;
(i) any commission payable to the employee;
(j) any gratuity payable on the termination of employment;
(k) any retrenchment compensation or other retirement benefit payable to the employee or any
ex-gratia payment made to him on the termination of employment;
Provided that, for calculating the wages under this clause, if payments made by the employer
to the employee under clauses (a) to (i) exceeds one-half, or such other per cent. as may be
notified by the Central Government, of all the remuneration calculated under this clause, the
amount which exceeds such one-half, or the per cent. so notified, shall be deemed as
remuneration and shall be accordingly added in wages under this clause: Provided further that
for the purpose of equal wages to all genders and for the purpose of payment of wages, the
emoluments specified in clauses (d), (f), (g) and (h) shall be taken for computation of wage.
Explanation.–Where an employee is given in lieu of the whole or part of the wages payable to
him, any remuneration in kind by his employer, the value of such remuneration in kind which
does not exceed fifteen per cent. of the total wages payable to him, shall be deemed to form
part of the wages of such employee;
On a plain reading one might note the new definition of ‘wages’ includes every remuneration
paid to an employee by the way of salary, allowances or capable of being expressed in terms
of money and includes just the basic pay, dearness allowance and retaining allowance and
excluding the listed components mentioned above, from (a) to (k), however the key to this
definition lies in the proviso to this definition, wherein it states that in the event if these
exclusions exceed more than 50% of the total remuneration payable to an employee, the
percentage exceeding 50% shall be deemed as remuneration and would be treated as wages.
So is the case of anything paid in kind and the same exceeds 15% of the total wages payable to
an employee.
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This proviso is a determining factor in every wage structure of an organisation in understanding

the impact the new labour codes have on them upon implementation. While some organisations
may have around 60% of their components as wages, others may havearound 70% to 80% as
wages, depending on the kind of wage structure it has been following under the existing laws.
This impact on the existing wage structure has a cascading effect on the statutory payouts, take-
home salary and other benefits payable to an employee, thereby significantly increasing the
cost to the company. For example, the Provident Fund will now have to be contributed on all
the components falling under the definition of ‘wages’, 2 while presently it is calculated on basic
pay3 for those earning above Rs. 15,000/-. Similarly, gratuity is currently paid out on basic
wages,4 and will have to be contributed on components constituting ‘wages’.5 This would see
a significant jump in cost to the company, something an organisation wasn’t prepared for.
Alternatively, due to increased statutory contributions, employees would see a reduction in
their take-home salary. The statutory benefits such as maternity benefits,6 leave encashment7
and overtime, 8 which are currently being paid out on gross wages, will be paid out on ‘wages’
thereby reducing the benefits payable to an employee.
OPERATIONAL IMPLICATIONS
The implementation of the New Labour Codes demands a comprehensive review of
organisational policies, processes, and operational procedures and they will need to amend their
existing policies, processes and operational protocols to align with the New Labour Codes.
Some notable changes to the existing policies and processes may include alignment of the
existing HR and financial policies and processes with the requirements of the new labour codes.
This may involve updating employee handbooks, revising payroll processes, modifying leave
management systems, contract labour management and ensuring adherence to new compliance
requirements.
2
The Code on Social Security, 2020 (36 of 2020), s 16(1)(a).
3
The Employment Provident Fund Scheme, 1952 (S.R.O. 1509) 30.
4
The Payment of Gratuity Act, 1972, s (4).
5
The Code on Social Security, 2020 (36 of 2020) s 53(2).
6
7
The Occupational Safety, Health and Working Conditions Code, 2020 (37 of 2020) s 32(viii).
8
The Code on Wages, 2019 (19 of 2019) s 14.
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The Occupational Safety, Health, and Working Conditions Code, 2020 (‘OSH Code’) specifies
a comprehensive format for appointment letters9 compared to the format outlined in other
labour laws. Organisations will be required to incorporate the additional fields and revise their
existing appointment letter format.
In terms of policy and procedure, the Code on Wages mandates employers to settle terminal
dues within two working days of an employee's exit from the organisation.10 Contrary to the
industry norm of taking approximately 30-45 days to settle such dues, organisations must now
devise a process to ensure settlement within the specified timeframe of two working days.
Furthermore, any deductions from an employee's wages are limited to 50% of the total
remuneration earned by the employee. 11 This includes deductions for advances, loans, asset
recovery, or allowances. Organisations must incorporate this requirement into their deduction
process, ensuring that deductions do not surpass 50% of the employee's earned wages.
As to the leave benefit of the employees, the OSH Code provides for annual leave, leave carry-
forward and encashment of leave during service.12 It recognises the concept of encashment of
leave during service in cases where the employee has carried over leave beyond 30 days, a
practice not commonly found in most jurisdictions currently.
The OSH Code upholds the principle of beneficial legislation.13 According to the principle, if
an existing policy offers a greater benefit than what is outlined in the OSH Code, the more
advantageous benefit for the employee shall take precedence. While favourable for the
employees, this will lead to increased operational and financial burden for the organisations,
and it will not contribute to reducing the administrative load on them.
Another important operational impact to be noted is regarding the formation of a Grievance

Redressal Committee (‘GRC’). Currently, organisations with alternative mechanisms in place
are not obligated to form such a committee. However, with the implementation of the Industrial
Relations Code, organisations will be mandated to establish a GRC.14 This will increase the
9
The Occupational Safety, Health and Working Conditions Code, 2020 (37 of 2020) s 6(f).
10
The Code on Wages, 2019 (19 of 2019) s 17(2).
11
12
The Occupational Safety, Health and Working Conditions Code, 2020 (37 of 2020) s 32.
13
14
The Industrial Relations Code, 2020 (35 of 2020) s 4.
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administrative burden of the organisation and result in the loss of man-hours dedicated to
handling grievances according to the prescribed procedures.
Organisations often encounter numerous challenges in managing contract labour, making it a

problematic area. The OSH Code introduces a new definition of ‘contract labour’, which
excludes workers (excluding part-time employees) regularly employed by the contractor for
any establishment activity. 15 This interpretation of contract labour favours organisations, as
employees engaged under these conditions are exempt from the provisions of the Contract
Labour (Regulation and Abolition) Act. This implies that organisations will need to review
their current contract labour engagements to determine if they can exempt these engagements
from the provisions of contract labour laws.
Another interesting aspect that is to be noted with contract labour is the prohibition of their
engagement in the core activities of organisations. 16 With this provision in place, organisations
will need to assess whether they can engage in contract labour within the exceptions provided,
cease their engagement in core activities altogether, or develop alternative solutions that are
beneficial for both the organisations and the contractors.
Significant changes have also been brought about regarding the licensing and registration
process under the OSH Code. New procedures have been prescribed for registration of the
establishments under the OSH Code17 and new conditions have been stipulated in respect of
licensing for contractors18 to facilitate ease of doing business. Further, the registration and
licensing process has been digitalized and organisations will now have a single registration that
will cover the majority of the legislation as opposed to multiple registrations under various
laws. Similarly, the introduction of a single license concept for contractors present across
multiple states has been introduced to simplify processes. Given the above, we expect an
increase in organisations' adherence to compliance requirements.
FUNCTIONAL IMPACT
15
The Occupational Safety, Health and Working Conditions Code, 2020 (37 of 2020) s 2(m).
16
17
18
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Due to the change in policy and processes leading to a holistic transformation in organisational
structure, change in management will involve a comprehensive effort, necessitating the
education of key stakeholders. Training HR personnel and Finance teams on the new labour
codes and their implications on their respective functions is crucial for ensuring compliance
and smooth operations within the organisation. They must understand the compliance
requirements imposed by the new labour codes. Further, they should also be made responsible
for establishing clear communication channels to address any queries or concerns raised by
employees regarding the impact of the changes on their employment and compensation. HR
and Finance departments must collaborate closely to ensure seamless implementation of the
new labour codes. This involves coordinating efforts to update policies, systems and processes,
as well as aligning strategies to mitigate any potential risks or challenges arising from the
changes. Overall, educating HR personnel and Finance teams on the new labour codes and the
implications on their functions is essential for fostering compliance, ensuring a smooth
transition, and effectively managing organisational change.
Employee Impact:
There is a sea of changes employees will see upon implementation of the new labour codes.
Firstly, employees would see a change in their salary structure as the organisation would
restructure the same to mitigate the impact of the new labour codes on both themselves as well
as for employees. Similarly, employees would also see increased benefits in terms of higher
gratuity payouts, and encashment of earned leaves on an annual basis as against on separation.
Employees would receive their salary within 7 working days of the subsequent month,19 the
full and final settlement would be done in 2 working days from the date of separation, 20 and
they would also be entitled to an experience letter within 7 days of separation. Failure on the
part of the organisation to comply with these can lead to prosecution before the Court of Law.
While earlier, employees were required to approach the Labour Department and upon failure
of conciliation proceedings, the matter would be referred to the Labour Court, whereas under
the new labour codes, employees can now directly approach the jurisdictional Criminal Court
and initiate criminal proceedings against the employers for noncompliance of the provisions of
the new labour codes.
19
20
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RISK AND PENALTIES

The new labour codes (Code on Wages, 2019,21 Code on Social Security, 2020,22 Industrial
Relations Code,202023 and Occupational Safety, Health and Working Conditions Code,
202024) provide for the compounding of offences. While there is no option to compound
offence under the existing labour laws, the new labour codes provide for the same. Offences
punishable with a fine of Rs. 50,000/- to Rs. 10,00,000/- are compoundable in the first instance.
While second and subsequent offences are punishable with a fine of Rs. 3,00,000/- to Rs.
20,00,000/- or with imprisonment of up to 3 years.
The Code on Wages, 2019

Offences that are not an offence punishable with imprisonment only or with imprisonment and
fine are compoundable. However, there is no compounding for an offence committed for the
second time within 5 years from the date of commission of a similar offence, which was earlier
compounded, or the date of commission of a similar offence for which such person was earlier
convicted. It is pertinent to note that, for the first instance, offences under the Code on Wages
are punishable with a fine only. Hence, implying that all offences under the Code on Wages
are compoundable offences.
The Code on Social Security, 2020

Offences punishable with a fine only or with imprisonment of less than 1 year and a fine are
compoundable offences. However, there is no compounding for an offence committed for the
convicted. Further, failure to pay an employee’s contribution, which has been deducted by the
employer from the employee’s wages, is punishable by 1 year of imprisonment or more and a
fine.25 Hence, this is the only offence that is non-compoundable.
21
22
The Code on Social Security (36 of 2020) s 138.
23
24
25
The Code on Social Security, 2020 (36 of 2020) s 133.
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The Occupational Safety, Health and Working Conditions Code, 2020

Some of the offences under the OSH Code may be compounded at the discretion of the
Magistrate. However, there is no compounding for an offence committed for the second time
within 3 years from the date of commission of a similar offence, which was earlier
convicted.26 It is pertinent to note that, the offences involving mens rea or serious violations
relating to safety and hazardous activities, such as obstruction to Chief-Inspector/Inspector on
purpose, falsification of records, omission to furnish plans, notices, reports without a
reasonable excuse, contravention of provisions relating to hazardous activities and safety
provisions, resulting in an accident are non-compoundable under the OSH Code.
The Industrial Relations Code, 2020

Offences that are not an offence punishable with imprisonment only or with imprisonment and
fine are compoundable. However, there is no compounding for an offence committed for the
convicted.
IMPACT ON GOVERNMENT AUTHORITIES

While the Government decided to bring about major reforms through the new labour codes,
little did take into consideration whether its department was prepared for its implementations.
Notably, there are no labour courts under the new labour codes and the same have been replaced
by Industrial Tribunals under the new labour codes.27 Similarly, labour inspectors have been
replaced with facilitators.28 However, their roles and responsibilities continue to remain the
same with few tweaks reflecting a shift from inspection to facilitation towards compliance.
While gig and platform workers were previously not covered under any legislation, the new
labour codes now include them by distinctly defining gig 29 and platform workers30 and
compelling aggregators to furnish social security benefits to all gig and platform workers
26
The Occupational Safety, Health and Working Conditions Code, 2020 (37 of 2020) s 12(3), 94, 96, 97(1), 99,
106, 97(2), 100(1), 101, 103(1)(b), 105 & 113(2).
27
28
29
30
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affiliated with them. 31 The new labour codes facilitate addressing the unique challenges faced
by Inter-State Migrant Workers32 and ensure their well-being, rights, and access to essential
services and benefits across different states of India. The provision for portability of benefits
ensures that Inter-State Migrant Workers can access benefits such as those from the public
distribution system and various social security schemes regardless of whether they are in their
native state or the state of employment. The question would then arise whether the Government
has sufficient data and infrastructure to ensure benefits provided under the new labour codes
reach the gig or platform and interstate migrant workers. In addition to offering registration,
the Government plans to formulate and notify schemes under the Social Security Code to
maintain records and establish helplines and facilitation centres for unorganised workers, gig
workers, and platform workers. However, as of date, there is no blueprint outlining the
implementation of these plans. Another interesting aspect is the certification of Standing
Orders, under the new labour codes. Standing Orders apply to all industrial establishments and
every organisation would be required to get their Standing Orders certified. This would lead to
a huge increase in organisations approaching labour authorities to get their Standing Orders
certified. The new labour codes have provisioned for the same, wherein they have mentioned
that upon applying and the Standing Orders are not being certified within 60 days from the date
of application, the same would be treated as deemed certification. Such provisions act as a
balance towards ease of business and protecting the interest of employees at the same time.
What is more critical of the Government in implementing the new labour codes is the approach
and preparedness of its departments before notifying them. This is a huge gap which can be
bridged by establishing a robust digital infrastructure as well as training its employees about
their roles and responsibilities and how they are required to address the issues arising from the
new labour codes upon their implementation.
CONCLUSION
One of the biggest hurdles towards the implementation of the new labour codes is the
notification of rules by the respective state governments. Currently, except for West Bengal,
Nagaland, and Meghalaya, all other states have issued at least one rule under the new labour
codes. While the Central Government may either implement one code at a time or all at once
is something we will need to observe and await. Before implementation, the Government will
31
The Code on Social Security, 2020 (36 of 2020) s 114.
32
The Occupational Safety, Health and Working Conditions Code, 2020 (37 of 2020) s 60 & s 61.
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have to take all the stakeholders into confidence and then proceed to implement the same. To
gain the confidence of all stakeholders, the Government will first have to address their concerns
with a clear plan of action. Some of the key issues raised in the objections to the labour codes
are concerning increased cost by the way of gratuity payable along with compulsory insurance
from the federation of industries, while the labour unions have challenged the mandatory notice
to be issued before going on a strike and increase in the threshold in cases of lay-off,
retrenchment and closure from 100 to 300 for purpose of seeking permission from the
Government for effecting retrenchment in case of factories, mines and plantation. 33 These are
some of the key issues to be addressed along with the time and duration to be provided for
employers to comply with provisions of the new labour codes. It is clear from the above
analysis that the Government has a lot of ground to cover before effectively implementing the
new labour codes. There will be a lot of concerns and issues to be addressed from across all
quarters once the labour codes are brought into force. The timeline for the enactment of these
codes remains uncertain, prompting the question on everyone's mind today: when are new
labour codes going to come into force? Answer to which none of us have.
33
The Industrial Relations Code, 2020 (35 of 2020) s 77(1).
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BEHIND THE PAYCHECK - A GLOBAL EXPLORATION OF SALARY

WITHHOLDING IN CORPORATE PRACTICES
*RAHUL MISHRA & SWATI GIRI
ABSTRACT
This research study takes a close look at the complex legal environment that surrounds the
controversial topic of corporate wage withholding. The research offers a comprehensive
examination that encompasses the regulatory frameworks of American, British, and Indian
labour laws. It illuminates the complex aspects that specify the rights and responsibilities of
employers and employees with regard to remuneration.In order to fully understand the Indian
background, the paper first carefully examines the terms of important legislation including the
Contract Labour (Regulation and Abolition) Act, the Payment of Wages Act, and the Industrial
Disputes Act. Examining the Indian legal system's developing jurisprudence through this lens,
it examines how courts interpret and apply labour rules in situations involving salary delays
by examining case legislation and judicial rulings. The research highlights the numerous
procedural options for impacted workers and investigates the function of regulatory agencies,
specifically the Labour Commissionerate, in guaranteeing adherence to labour laws and
protecting workers' rights.Crossing continents, the article continues its study with a look at
state-specific rules and federal legislation like the Fair Labour Standards Act (FLSA) in the
United States. The research sheds light on the many legal protections that influence pay
practices in the business environment of the United States by taking into account the function
of employment tribunals and other dispute resolution procedures.In addition, the research
explores the legislative framework in Britain, including laws such as the Employment Rights
Act and the Equality Act. It looks at the procedures that the UK has in place for handling pay
disputes and how employment tribunals support worker rights. By means of these comparisons,
the study seeks to elucidate the disparities in methodologies and legal protections among
various jurisdictions, therefore augmenting a worldwide comprehension of wage withholding
practices.This paper critically investigates several defences that businesses can use to withhold
compensation, including money difficulties or subtleties in contracts. It takes into account the
wider societal ramifications of wage delays as well as the fine line that must be drawn between
business rights and the defence of employee rights when it comes to compensation. The
research aims to promote educated discussion on the changing dynamics of labour laws and
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their practical repercussions for businesses and people globally via case studies and
comparative analysis.
KEYWORDS:
Salary, Wages, Employment Rights, Contract Labour, Workmen, Wages, Operational
implications.
Introduction
Salaried employment has rapidly spread across sectors today. The term “salary”has been
defined in the Income Tax Act as wages, any annuity or pension, any gratuity, any fees,
commissions, perquisites or profits in lieu of or in addition to any salary or wages. 34However,
it generally refers to a regular, fixed payment, usually disbursed on a monthly basis but
sometimes represented as an annual amount. This payment is made by an employer to an
employee, constituting a form of compensation that is often outlined in the terms of an
employment contract.
The Industrial Disputes Act, 1947 defines “workman” as any person including an apprentice
“employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical
or supervisory work”.35 This definition has gained significance as there exists no definition of
salaried persons in any Indian legal statute. The desirability and lack of definition were
highlighted long ago in 1938, by the ILO Advisory Committee on Salaried Employees in a
resolution.36 Since then, salaried employees have been defined by multiple international
jurisdictions.
The discussion of who are salaried employees is relevant as it provides contexts to the
withholding or deferment of salaries by employers. The paper posits the idea that delays and
deferment of salaries by employers are detrimental to the well-being of the salaried class. There
have been instances of non-payment, deferment and withholding of salaries by employers in
34
The Income Tax Act, 1961 (43 of 1961) s 17(1).
35
The Industrial Disputes Act, 1947 (14 of 1947) s 2(s).
36
U Liukkunen, ‘International Labour Organization and Global Social Governance’ (SpringerLink, 2020)
<https://www.link.springer.com/book> accessed 09 February 2024.
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India and globally such as PlayUp, 37Byjus38 and BEVCO.39 The legal stance on such payment
varies from country to country. While countries like India explicitly do not recognize salaried
persons or delay, countries like the United Kingdom, in certain cases, do.40 However, the
present jurisprudence seems clearly on the employee side, hence the question that subsequently
arises is whether there are or should be any justifications for withholding the paycheck. The
paper explores real-life examples such as Dunzo and Bevco in India which significantly
contribute to the existing jurisprudence and serve as a reminder that a separate legislation may
bein order curb this menace which is gaining traction.
The Employment Rights Act 199641 and the National Minimum Wage Act 199842 govern the
relationship between the employer and employee in the United Kingdom, whereas in the United
States, the Fair Labor Standards Act (FLSA),43 protects the interests of employers and
employees alike. FLSA is further supplemented by other state legislations of the United States.
An analysis of these jurisdictions with the Indian legal position highlights the lacuna in the
Indian framework along with the gravity of the problem faced. The aspect of justification for
delay in payment of salary is explored subsequently. Further, the paper proposes certain
additions to the present laws so as to eradicate the present anomalies in the legal framework
while comparing different jurisdictions, along with the conclusion.
EXAMINATION OF THE INDIAN LEGAL LANDSCAPE
37
Weinman A and Mason M, ‘Fantasy Sport Platform’s US Staff Endure Wages Delay amid Messy Exit’
(Australian Financial Review, 21 July 2023) <https://www.afr.com/companies/games-and-wagering/playup-s-us-
staff-endure-long-waits-for-payment-amid-messy-exit-20230719-p5dpll> accessed 09 February 2024.
38
Pathak M, ‘Supreme Court Order on Payment of Wages during the Lockdown Period - Employee Benefits &
Compensation - India’ (Supreme Court Order On Payment Of Wages During The Lockdown Period - Employee
Benefits & Compensation - India, 29 June 2020) <https://www.mondaq.com/india/employee-benefits--
compensation/959246/supreme-court-order-on-payment-of-wages-during-the-lockdown-period-> accessed 09
February 2024.
39
Benny N, ‘Excise Commissioner Has Ordered Relocation or Closure of BEVCO Outlet Situated in Residential
Area: Govt Tells Kerala High Court’ (Live Law, 21 July 2023) <https://www.livelaw.in/high-court/kerala-
highcourt/kerala-high-court-liquor-sale-in-residential-area-bevco-excise-commissioner-orders-closure-233292>
accessed 09 February 2024.
40
A Sharma, ‘International and National Experiences of Wage Policy’ (SpringerLink, 1 January 1970)
<https://link.springer.com/referenceworkentry/10.1007/978-3-319-71060-0_97-1> accessed 9 February 2024.
41
The Employment Rights Act, 1996 (18 of 1996).
42
The National Minimum Wages Act, 1998 (39 of 1996).
43
The Wages and the Fair Labor Standards Act, 1938 29 U.S.C.
<https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.dol.gov/agencies/wh
d/flsa&ved=2ahUKEwiX7OCqtbWGAxWqna8BHcw7CmwQFnoECCYQAQ&usg=AOvVaw0-
3Fy_TGSKrTvCelrNfqq4> accessed 09 February 2024.
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In the realm of employment law in India, the issue of salary withholding has emerged as a
significant concern affecting the rights and livelihoods of workers. When employers fail to
remunerate their employees in a timely manner, it not only undermines the financial stability
of the workforce but also raises legal and ethical questions regarding fair labor practices. In
such situations, individuals often resort to legal recourse to recover their unpaid dues and seek
redress for violations of their contractual rights.
The most common method employed by individuals to recover their salary from their employer
is to institute a civil suit against their employer for non-payment. Usually, salary is withheld
by the employer either on termination of employment by them or upon resignation by the
employee.Under the Contract Labour (Regulation and Abolition) Act, it is mandatory for the
contractor to remunerate every contract labourer with remuneration, which must be disbursed
within the specified timeframe.44 The principal employer assumes liability for full payment of
wages or the unpaid residual due for contract labour performed by the contractor if this
obligation is not fulfilled. The amount paid from the contractor may be recovered by the
principal employer via deduction from any amount owed to the contractor under the terms of
the contract.45
Similarly, the Industrial Disputes Act, of 1947, provides a statutory framework for the
resolution of industrial disputes, including issues related to salary withholding. Section 33C of
the Act empowers employees or their authorized representatives to file applications for the
recovery of unpaid dues, with adjudication by the appropriate government or the Labour
Court.46 This provision aims to expedite the resolution of salary-related disputes and protect
the interests of employees.Additionally, Sections 22 47 and Section 2348 of the Act confer
jurisdiction upon labour courts and industrial tribunals to adjudicate disputes arising from the
non-payment or delayed payment of salaries. These judicial bodies have the authority to hear
and decide salary-related cases, ensuring that employees have access to a fair and impartial
forum for the resolution of their grievances.
44
The Contract Labour (Regulation and Abolition) Act 1970, (37 of 1970) s 21.
45
Ibid.
46
The Industrial Disputes Act, 1947 (14 of 1947) s 33C.
47
The Industrial Disputes Act, 1947 (14 of 1947) s 22.
48
|Page 16
However, it is important to note that the Industrial Disputes Act applies primarily to individuals
classified as "workmen" within the scope of the legislation. The term "workmen" is defined
under Section 2(s) of the Act, which includes individuals engaged in manual, skilled, or
unskilled work in any industry. 49 While this definition encompasses a significant portion of the
workforce, it may not extend to administrative or managerial employees who do not fall within
the ambit of "workmen" as per the Act.50 As a result, administrative and managerial workers
may find themselves excluded from the protection afforded by the Industrial Disputes Act in
cases of salary withholding. Unlike their counterparts engaged in manual or skilled labor,
administrative and managerial employees may not have recourse to Section 33C of the Act for
the recovery of unpaid dues. 51
The Payment of Wages Act, 1936,52 and the Minimum Wages Act, 1948,53 further strengthen
the legal framework by regulating the payment of wages and fixing minimum wage rates for
workers. These legislations ensure that employees receive fair compensation for their labor and
provide mechanisms for addressing grievances related to deductions or delays in
payment.Under the Payment of Wages Act, 1936, employers are mandated to pay wages within
a specified timeframe, as outlined in Section 3.54 This provision safeguards employees from
unauthorized deductions and delays in payment, fostering transparency and accountability in
employer-employee relations. Additionally, Section 15 empowers the appropriate government
to appoint officers to handle claims arising from wage-related disputes, facilitating timely
resolution.55 Further, the Minimum Wages Act, 1948, establishes minimum wage rates for
workers, preventing exploitation and ensuring just remuneration. Section 3 of the Act outlines
the obligation of employers to pay wages not less than the minimum rate prescribed, taking
into account factors such as skill level and economic conditions.56
49
The Industrial Disputes Act, 1947 (14 of 1947) s 2(s).
50
Ibid (n.49).
51
The Industrial Disputes Act, 1947 (14 of 1947) s 33C.
52
The Payment of Wages Act, 1936 (4 of 1936).
53
The Minimum Wages Act, 1948 (11 of 1948).
54
The Payment of Wages Act, 1936 (4 of 1936) s 3.
55
The Payment of Wages Act, 1936 (4 of 1936) s 15.
56
The Minimum Wages Act, 1948 (11 of 1948) s 3.
|Page 17
Workers who experience non-payment or delayed salary payments have a number of legal
remedies at their disposal to ensure that their legal rights are upheld. 57 These avenues comprise
a variety of legislative measures and procedures intended to resolve wage-related complaints
and preserve the core idea of equitable labour pay. Civil suits under contract law offer a legal
mechanism for employees to address violations of their employment contracts regarding salary
payments. Section 447 of the Companies Act, 2013, allows for the initiation of trials against
employers who fail to fulfil their contractual obligations, providing employees with a means to
seek redress for non-payment of salaries.58 However, it's important to acknowledge that civil
suits can be time-consuming and involve lengthy legal proceedings, potentially prolonging the
resolution of salary disputes.Moreover, the Insolvency and Bankruptcy Code, of 2016,59
recognizes employees as operational creditors, granting them the right to file applications with
the National Company Law Tribunal (NCLT) for the recovery of unpaid salaries. As per the
provisions of the IBC, specifically Sections 760and Section 9,61 employees can seek recourse
through the corporate insolvency resolution process if certain conditions are met. Additionally,
Section 212(6) of the Companies Act,2013, allows for the initiation of investigations into
complaints related to non-payment ofsalaries, preventing frivolous complaints and ensuring a
fair resolution process.62
CURRENT JURISPRUDENCE IN INDIA

The prevailing stance regarding the withholding of salaries in India reflects a complex interplay
between corporate practices, legal interpretations, and constitutional principles. Recent
incidents, such as Dunzo's failure to pay November salaries to its employees, highlight the
critical issue of delayed or deferred salary payments.63 While companies often cite financial
constraints as reasons for such delays, the legal framework and constitutional provisions offer
a nuanced perspective on this matter.
57
Rushibhai Jagdishbhai Pathak v Bhavnagar Municipal Corporation AIR 2022 SCC OnLine SC 641.
58
The Companies Act, 2013 (18 of 2013) s 447.
59
The Insolvency and Bankruptcy Code, 2016 (31 of 2016).
60
The Insolvency and Bankruptcy Code, 2016 (31 of 2016) s 7.
61
The Insolvency and Bankruptcy Code, 2016 (31 of 2016) s 9.
62
The Companies Act, 2013 (18 of 2013) s 212 (6).
63
Tapanjana Rudra, ‘Cash-Strapped Dunzo Fails to Pay November Salaries’, (Inc42, 07 December 2023)
<https://www.cash-strapped-dunzo-fails-to-pay-november-salaries/> accessed 05 February 2024.
|Page 18
From a constitutional perspective, the right to receive timely payment of salaries is deeply
entrenched in the fundamental rights guaranteed by the Constitution of India. Article 21,64often
referred to as the “right to life and personal liberty,” has been interpreted expansively by the
judiciary to encompass not just physical existence but also the right to livelihood. This broader
interpretation recognizes that the right to life includes the right to live with dignity, which
entails access to the means necessary for sustenance and well-being.The Andhra Pradesh High
Court's ruling,65 which emphasized the intrinsic link between salary disbursement and the right
to life under Article 21, underscored the significance of timely payment of wages in
maintaining the livelihoods of individuals. The court recognized that the disbursement of
salaries is vital for sustaining the livelihoods of employees during their active service and post-
retirement through pension. Any delay or deferral of salaries, whether partial or complete, was
deemed to be a violation of the right to life enshrined in the Constitution.66
Furthermore, Article 300A of the Constitution,67 which pertains to the right to property, also
plays a crucial role in protecting employees' entitlement to receive their salaries. While Article
300A primarily deals with the right of the state to acquire property and the restrictions imposed
on it, it has been interpreted to include the right of individuals to their lawful dues, including
salaries earned through employment.68 Thus, any interference with the payment of salaries
without lawful authority can be seen as a violation of this constitutional provision as well.
From a legal standpoint, deferred salaries may be permissible if employees consent to such
arrangements or if financial constraints genuinely incapacitate the company. However,
absolute denial or non-consensual deferral of salaries is considered a violation of constitutional
provisions, as affirmed by various court decisions. For instance, the Bombay High Court's
rulings in cases like the YuvyajNathuji69 case and the M/s Aithent Technologies Pvt. Ltdcase
elucidated the employer's liability to pay interest on deferred salaries and reiterated the
importance of timely salary disbursement. 70
64
The Constitution of India, 1950 art 19.
65
S.Bujji Babu Sharma v State Of Andhra Pradesh AIR 2021 SC 2447.
66
Ibid.
67
The Constitution of India, 1950 art 300A.
68
Ibid.
69
Yuvraj Nathuji Rodye v Chairman, Maharashtra State Electricity Board, Bombay and Others AIR 2008 SCC
OnLine Bom 904.
70
M/S. Aithent Technologies Pvt. Ltd. v Archana Verma AIR 2018 SCC ONLINE DEL 10381.
|Page 19
In another landmark judgement, the Bevco case, formally known as the Kerala State Beverages
(Manufacturing & Marketing) Corporation Ltd. v P.S. Sreenivasan & Ors, 71the Kerala High
Court examined the legality of the government's decision to withhold the salaries of its
employees as a disciplinary measure and underscored the principle that salary withholding
cannot be justified as a punitive measure, especially when it infringes upon the fundamental
rights of employees. The court emphasized that while the government has the authority to take
disciplinary action against its employees for misconduct or dereliction of duty, such actions
must be proportionate and in accordance with established legal principles.Furthermore, the
judgment highlighted the obligation of the state as an employer to act responsibly and ensure
the welfare of its employees. It emphasized that the state cannot shirk its duty to provide timely
and adequate remuneration to its employees, as it undermines their dignity and jeopardizes
their livelihoods.
Further, the recent crisis faced by Dunzo, a prominent quick-commerce platform, serves as a
poignant example of the challenges and repercussions associated with salary withholding in
the corporate landscape. Despite its initial promise and substantial investments, Dunzo found
itself unable to meet its financial obligations, leading to the deferred payment of salaries and
layoffs of a significant portion of its workforce.72 This development not only highlights the
financial instability inherent in certain sectors but also underscores the human toll of such crises
on employees who rely on timely salary disbursement for their livelihoods.While rapid growth
and innovation are hallmarks of the tech industry, the pursuit of profitability and market
dominance should not come at the expense of employee welfare and ethical business practices.
The failure of Dunzo to prioritize salary disbursement underscores the need for robust
regulatory frameworks that safeguard the rights and interests of employees, ensuring fair
treatment and recourse in cases of salary withholding or non-payment.
When employees face the withholding of their rightful wages, it not only impacts their financial
stability but also raises fundamental questions about fairness and justice in the workplace. In
response to such situations, a range of procedural options is available to affected workers, each
71
Kerala State Beverages (Manufacturing & Marketing) Corporation Ltd. v P.S. Sreenivasan & Ors 2017 SCC
OnLine Ker 26413.
72
Aishwarya Anand, ‘Fresh layoffs, legal notices and salaries deferred: Cash-strapped Dunzo grapples for
survival’, (CNBCTV18, 21 July, 2023) <https://www.cnbctv18.com/startup/dunzo-layoffs-legal-notices-and-
salaries-deferred-cash-strapped-grapples-for-survival-17296251.htm&ved> accessed 09 February 2024.
|Page 20
playing a distinct role in addressing grievances and ensuring adherence to labour laws.Many
organizations in India have established internal grievance redressal mechanisms to facilitate
open communication and resolution of employee concerns, including salary disputes. These
mechanisms aim to provide a platform for employees to voice their grievances and seek
resolution within the organizational structure. However, in cases where internal mechanisms
fail to yield satisfactory outcomes, workers may turn to external avenues for resolution.
One such option is seeking conciliation and mediation services provided by regulatory bodies
like the Labour Commissionerate or independent mediators.73 These services offer a neutral
forum for parties to engage in dialogue and negotiate a mutually acceptable resolution outside
of formal legal proceedings. By facilitating constructive communication and compromise,
conciliation and mediation can often lead to swifter and less adversarial outcomes.In instances
where informal resolution attempts prove ineffective, workers may escalate their grievances by
filing complaints with labor courts or tribunals. 74 These judicial bodies specialize in
adjudicating labour disputes and have the authority to hear cases related to salary withholding
and other labour violations. Through legal proceedings, workers can seek remedies such as
compensation, reinstatement, or punitive damages, with decisions binding on both parties.
Regulatory agencies such as the Labour Commissionerate play a crucial role in monitoring
compliance with labor laws and enforcing statutory requirements. These agencies conduct
inspections, investigate complaints, and intervene in cases of labour violations, including salary
withholding. By holding employers accountable through notices, inquiries, and penalties for
non-compliance, regulatory agencies ensure that workers' rights are protected and upheld.
LEGAL POSITION IN THE WEST

The United States of America
The Fair Labor Standards Act (FLSA), a cornerstone of labour regulations in the United States
since its enactment in 1938, aims to protect workers from unfair wage practices. 75One notable
73
Noronha, E., D’Cruz, P., Mediation and Conciliation in Collective Labor Conflicts in India (Springer, Cham.
2019).
74
Ibid.
75
The Wages and the Fair Labor Standards Act, 1938 29 U.S.C.
<https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://www.dol.gov/agencies/wh
d/flsa&ved=2ahUKEwiX7OCqtbWGAxWqna8BHcw7CmwQFnoECCYQAQ&usg=AOvVaw0-
3Fy_TGSKrTvCelrNfqq4> accessed 09 February 2024.
|Page 21
aspect of salary withholding involves the misclassification of employees as independent

contractors, a practice prevalent in industries such as gig economy platforms, construction, and
trucking. By classifying workers as independent contractors rather than employees, companies
often evade their obligations to pay minimum wages and provide overtime compensation.
Ridesharing company Uber faced a lawsuit over its classification of drivers as independent
contractors, leading to a million settlement to resolve claims related to employee
misclassification and unpaid wages.76In addition to federal statutes like the FLSA, state-
specific regulations play a crucial role in addressing salary withholding and deferred payment
practices.
State-Specific Legislations in US
A study revealed that more than two-thirds of low-wage workers in major cities experienced at
least one wage violation in their previous work week, including failure to pay overtime and
falling below the minimum wage requirements.77 This widespread noncompliance translates
into substantial economic losses for workers, with estimates suggesting that wage violations in
California and New York alone cost workers at least $32.7 million per week, contributing to
income inequality and pushing thousands of families below the poverty level.78
Under Section 204 of the California Labor Code, employers are mandated to adhere to regular
payday intervals, ensuring timely payment of wages to employees. Failure to comply with these
requirements may result in civil recourses for the employees.79 In a landmark California case,80
the court held that employers are obligated to expeditiously remunerate terminated employees
with their final compensation. These provisions highlight the importance of prompt wage
payment in California and serve as a deterrent against non-payment or deferment practices.
When moving on the East Coast, New York's labor laws, as outlined in Section 191 of the
Labor Law, establish clear guidelines for the timing and frequency of wage payments.In
Illinois, the Wage Payment and Collection Act, mandates that employers pay employees their
76
Lauren Feiner, ‘Uber, Lyft to Pay $328 Million to Settle Wage-Theft Allegations in New York State’ (CNBC, 2
November 2023) <https://uber-lyft-pay-328-million-to-settle-new-york-wage-theft-allegations.html/> accessed
09 February 2024.
77
Jeounghee Kim & Skye Allmang, ‘Wage theft in the United States: A critical review’ (June 2020)
<https://smlr.rutgers.edu/sites/default/files/Documents/Centers/CWW/Publications/wage_theft_in_the_united_st
ates_a_critical_review_june_2020.pdf> accessed 9 February 2024
78
Ibid.
79
The California Labour Code, 1937 s 218.
80
Abarca v Citizens of Humanity, LLC, No. B283154 (Cal. Ct. App. Jul. 31, 2019).
|Page 22
earned wages in full and on time.81 Non-compliance with these requirements may result in
penalties.
Moving on to the state of Massachusetts, where Massachusetts Wage Act, sets forth stringent
requirements for the payment of wages, including timing and frequency. Employers must
ensure timely payment of wages to employees, 82 with penalties prescribed for violations.83
While in Texas,the Texas Payday Law, as stipulated in Section 61.011, employers are required
to adhere to specific requirements for the timing and frequency of wage payments. There also
are penalties for non-compliance with these requirements, emphasizing the importance of
timely wage payment in Texas.84 The state laws seem to be strict and appropriate for the task
of ensuring timely payment of salaries. The existence of robust regulatory frameworks at the
federal and state levels enhances the effectiveness and compliance yet, challenges persist in
combating salary withholding and deferred payment practices. For example, even when
violations are identified, penalties may not be severe enough to outweigh the potential benefits
of non-compliance.
The United Kingdom

Salary withholding stands as a contentious issue with significant implications for workers'
rights and fair compensation practices in the United Kingdom. This practice is primarily
governed by two key pieces of legislation: the Employment Rights Act 1996 (ERA) 85 and the
National Minimum Wage Act 1998 (NMW Act).86 Together, these laws establish a
comprehensive legal framework aimed at protecting employees from unauthorized deductions
while ensuring compliance with minimum wage regulations.
The ERA serves as the cornerstone legislation safeguarding workers' rights concerning salary
withholding in the UK. Section 13 of the ERA defines wages expansively to encompass various
forms of compensation related to employment, including salary, bonuses, commissions, and
statutory payments.87 However, the Act also specifies exclusions, such as advances of wages
81
The Illinois Wage Payment and Collection Act, 1973 s 115.
82
The Massachusetts Wage Act, s 148.
83
The Massachusetts Wage Act, s 150.
84
The Texas Payday Act 61.009(3)(B).
85
The Employment Rights Act, 1996.
86
The National Minimum Wages Act, 1998.
87
The Employment Rights Act, 1996, s 13.
|Page 23
and pension contributions, from the definition of wages.Section 13(1) of the ERA establishes
specific circumstances under which employers can withhold pay.88 Notably, deductions are
permissible if they are required or allowed by law, such as for tax and national insurance
contributions, or if they are made pursuant to a court order. Additionally, deductions may be
made with the written agreement of the employee or in cases of industrial action. Compliance
with these provisions is essential to ensure that deductions do not result in wages falling below
the National Minimum Wage threshold, thereby protecting workers' rights to fair
compensation.
Complementing the ERA, the NMW Act imposes obligations on employers to prevent
deductions that would lead to wages falling below the minimum wage threshold. Section 1 of
the NMW Act sets out the minimum rates of pay for different categories of workers, ensuring
that employees receive fair compensation for their labor.89 Employers must adhere to these
minimum wage regulations to avoid legal repercussions and maintain equitable compensation
practices for their workers.In instances where pay is withheld, employers must adhere to legal
requirements regarding the duration of withholding and the resolution of disputes. Further,
Section 23 of the ERA stipulates that any deductions made by an employer must be
communicated clearly to the employee, and disputes regarding unauthorized deductions can be
addressed through formal grievance procedures or legal action.90
In addition to legislative provisions, legal precedent plays a crucial role in shaping the
landscape of salary withholding in the UK. In the case of British Airways plc v Williams and
Others,91British Airways was found to have breached contractual obligations by withholding
bonuses from cabin crew members during a strike. Similarly, in Bear Scotland Ltd v Fulton
and Others,92 the Supreme Court ruled that employers must include overtime payments when
calculating holiday pay for workers, ensuring that employees receive their full entitlements
under the law.
88
The Employment Rights Act, 1996, s 13(1).
89
The National Minimum Wages Act, 1998, s 1.
90
The Employment Rights Act, 1996, s 23.
91
British Airways plc v Williams and Others 2012 EWCA Civ 58.
92
Bear Scotland Ltd v Fulton and Others [2015] UKSC 25.
|Page 24
Furthermore, the issue of salary withholding intersects with broader discussions surrounding
worker rights, fair labor practices, and corporate responsibility. As organizations strive to
maintain a competitive edge in an increasingly globalized economy, the treatment of employees
and adherence to legal and ethical standards have come under heightened scrutiny. Employers
are increasingly expected to demonstrate transparency, accountability, and a commitment to
upholding workers' rights in all aspects of their operations, including salary payment practices.
CROSS JURISDICTIONAL ANALYSIS AND THE OTHER SIDE

The problem of deferring payment is rampant and is not limited to one jurisdiction. It is
pertinent to go over multiple jurisdictions for a better picture of the situation. There exists the
problem of even underdeveloped countries like Ghana93 facing delay in payment of salaries.
This in general seems like an issue with the law enforcement agencies or regulatory
mechanisms as well. Political, economic, and legal sanctions discourage employers in the
majority of societies from withholding wages. Withholding wages may result in severe
economic repercussions if labour laws mandating prompt payment cannot be enforced; these
include low employee morale, effort, and productivity, as well as high attrition.94 Even
countries like Russia are facing this pressing issue of salary arrears.95
But a pertinent question is now posed to us, what if the employee is at fault? Fault in the sense
that there might be an unsatisfactory performance on the part of the employee, or he or she may
have not served their notice period or partially served it. This question is answered at the very
core of the employment contract. The terms of the contract clarify any such terms which are to
be followed. A significant factor leading to wage withholding is the complaint-driven nature
of labour standards enforcement, where workers are required to come forward to report
violations. However, fear of retaliation, limited awareness of rights, and the complexity of the
complaint process often deter workers from filing complaints. Furthermore, some employers
exploit loopholes in the regulations or engage in deliberate non-compliance practices to
circumvent wage requirements as mentioned in the Uber case.
93
Buehren, N., Ceretti, V., Dervisevic, E., Goldstein, M., Klapper, L., Koroknay-Palicz, T., &Schaner, ‘Salary
Delays and Overdrafts in Rural Ghana’. AEA Papers and Proceedings, 108, 449–452
<https://l10qfnoecbyqaq&usg/> accessed 09 February 2024.
94
Gerber, T. P. (2006), ‘Getting Paid: Wage Arrears and Stratification in Russia’, American Journal of Sociology,
111(6), 1816–1870 <https://doi.org/10.1086/499511> accessed 09 February 2024.
95
Ibid.
|Page 25
From the jurisdictions of the United States, India and the United Kingdom, it can be inferred
that employers are not allowed to withhold salaries of employees. After looking at multiple
jurisdictions it seems that the problem is not isolated. India particularly is experiencing this due
to its large workforce96 and emerging startup culture. But with progress comes setbacks. The
present Indian regime offers certain remedies as discussed but can improve on certain aspects
such as lack of deterrence. There exists no law that deters or penalizes employers for delays in
payments. Furthermore, India unlike the United States or United Kingdom lacks clear legal or
statutory definitions of very basic terms such as salaried employee/person. This again becomes
the source of discrepancies. While a separate provision for labour courts does not exist in the
United States, it has an elaborate labour law code supplemented by State legislations. India on
the other hand has established labour courts and similar tribunals, but it lacks an all-
encompassing comprehensive code. However, the evolving jurisprudence from various courts
and tribunals adds to the lacuna present and aid in the dispensation of justice.
RATIONALE BEHIND SALARY WITHHOLDING: OPERATIONAL PERSPECTIVE

Withholding pay from employees by firms may be a complicated matter in the workplace with
ramifications for both employers and employees. Workers may frequently view such acts with
distrust or anxiety, but it's important to understand that these decisions may have valid
justifications that stem from operational, legal, or financial concerns.Financial constraints often
stand as a prominent reason why corporations might choose to withhold salaries. In instances
where a company is facing economic challenges, such as a decline in revenue or increased
operating costs, it may struggle to maintain its cash flow and meet its payroll obligations.
Salary withholding frequently takes place in reaction to employee misbehaviour or non-

performance. Businesses could see this as a disciplinary action used to deal with things like
breaking company rules, acting unethically, or not achieving targets.For instance, in 2018 Tesla
CEO Elon Musk announced plans to withhold performance-based stock options from an
employee who allegedly engaged in sabotage against the company's operations, citing the need
for accountability and integrity in the workplace.When and why firms withhold pay is largely
determined by their legal requirements. It is legally obligatory of employers to take specific
96
Bandura, R., & Sword, C, ‘India’s Future Workforce Trends: Challenges and Drivers. In The Future of Global
Stability: The World of Work in Developing Countries’ (Center for Strategic and International Studies, 2018) 3-
15 <https://www.google.com/public/publication/181018__India.pdf> accessed 09 February 2024.
|Page 26
amounts out of their workers' paychecks for social security, taxes, and other statutory
deductions. Serious repercussions, such as fines, penalties, or legal action, may arise from
breaking these legal obligations. The Indian government's implementation of tax withholding
rules, which require firms to promptly withhold and return taxes from employee wages to the
authorities in order to avoid legal ramifications, is a prominent illustration of this.
Under some conditions, contractual agreements between employers and employees may also
give rise to the right to withhold wages.Employment contracts or collective bargaining
agreements may include clauses that provide employers the right to defer or withhold salary
payments in the event of an employee violation of contract, a temporary shutdown, or an
occurrence of force majeure. A recent example involving British Airways resulted in legal
challenges concerning contractual responsibilities and employee rights when the company was
accused of depriving cabin staff workers of bonuses during a strike.Salary withholding may
also take place in the midst of disagreements or legal actions involving employers and workers,
pending the outcome of those actions.
CONCLUSION AND SUGGESTIONS

In conclusion, the matter concerning the withholding of salaries is a multifaceted domain
influenced by legal structures, practical necessities, and moral reasoning. Employees are
entitled to equitable and prompt remuneration for their work, a principle that is universally
applicable in jurisdictions including the United States, India, and the United Kingdom. As a
result of a variety of factors, including contractual disputes and financial constraints, salary
delays, and non-payment frequently happen in practice, deviating regularly from this standard.
The regulatory mechanisms, legal precedents, and societal ramifications associated with salary
withholding have been examined as part of this investigation into the practice's multifaceted
nature. Despite the existence of protections, it is evident that safeguarding worker rights and
ensuring compliance remains difficult, as evidenced by the examination of Indian labour laws,
state-specific regulations in the United States, and the comprehensive legal framework in the
United Kingdom.
Although various legal channels exist to seek redress, such as labour court adjudication,
regulatory interventions, civil suits, and regulatory interventions, their efficacy is frequently
impeded by procedural intricacies, apprehension of reprisal, and insufficient deterrence effects.
|Page 27
Furthermore, with guaranteeing punctual and equitable remuneration, the changing dynamics
of the contemporary labour force, which are marked by the emergence of gig economy
platforms and remote work agreements, present novel obstacles.
In light of the difficulties that salary withholding in the workplace presents, it is imperative that
you take into account a number of suggestions for dealing with this problem in its entirety.
First and foremost, governments have a duty to guarantee legal safeguards through the creation
and strict application of labour laws that specify the rights and duties of employers and
employees with regard to compensation. This must have procedures for quickly settling pay
disagreements and levying heavy fines for noncompliance. Furthermore, regulatory control
should be reinforced by giving organizations like labour Commissionerate the necessary
funding and power to monitor labour law compliance, carry out routine inspections, and
quickly act in situations of wage withholding. Furthermore, it is crucial to encourage
accountability and openness. Employers must establish efficient grievance redress channels,
ensure that wage rules are comprehensible to workers, and uphold transparent payroll
procedures. Additionally, workers must have the confidence to disclose instances of pay
withholding without worrying about retaliation. Moreover, it is critical to promote
communication and cooperation across all parties involved, including government
organisations, businesses, labour unions, and employees. It is possible to identify systemic
issues, exchange best practices, and create cooperative solutions through positive involvement.
Further, Companies whose financial stability is in question or startups which are still raising
investments and whose finances are not secure should be mandatorily asked to create Employee
Trust Accounts which would disburse their salaries. This would accord the much-needed safety
and guarantee to the salary payments. In case of insolvency of the company, these accounts
would remain secure. Dunzo and Byjus are examples of companies which could have been
mandated. These accounts should have at least a certain number of salaries of their employees
as their minimum balance.
It is important to highlight ethical corporate practices, acknowledging that treating employees

fairly is both morally and legally required. This means adhering to contractual obligations,
putting employee well-being first in times of financial hardship, and not taking any retaliatory
action. By putting these suggestions into practice, we can reduce pay withholding while
|Page 28
maintaining workers' rights and dignity. In the end, this will result in an environment at work
that is marked by accountability, justice, and honesty. Ensuring fair compensation for all
workers, recognising their financial contributions, and promoting an atmosphere at work that
promotes prosperity and respect for one another are the main objectives.
|Page 29
THE GIG ECONOMY UNVEILED: NAVIGATING OPPORTUNITIES AND LEGAL

FRONTIERS
*AADYAA KATIYAR AND TUSHAR TYAGI
ABSTRACT
This article explores the transformative trajectory of legal provisions in India amidst the
evolving dynamics of the gig economy. The burgeoning gig economy, characterized by
‘platform’ and ‘non-platform’ workers, challenges traditional labour laws designed for
employer-employee relationships. The analysis delves into the intricacies of the Indian legal
framework, highlighting the historical focus on safeguarding the rights of employers and
workers in the traditional labour sector. Notably, the absence of protections for gig workers
until 2020 underscored a legislative lag, necessitating subsequent developments.The proposed
legislative framework, exemplified by the Code on Social Security, 2020,97 comprehensively
addresses the rights of gig workers. However, it exposes a fragmented legal landscape as these
workers remain excluded from pivotal labour laws. The definition of gig workers within this
code, specifically categorized as ‘platform workers’ and ‘unorganized workers’, enhances
clarity but introduces implementation challenges attributed to discretionary language and the
potential for misclassification. Global initiatives, exemplified by the ‘dependent contractor’
status, underscore endeavours to universally extend protections to gig workers.Furthermore,
thisexamination delves into the constraints of the Rajasthan Bill, strategically formulated to
cater to platform-based gig workers. While instituting a Welfare Board, the bill concentrates
narrowly on specific gig workers, adopting a class-based approach that inadvertently excludes
a substantial segment of the gig economy. Moreover, the bill neglects to redefine the legal
dynamics between gig workers and aggregating platforms, leaving them susceptible to labour
law transgressions and devoid of social security benefits. The imposition of a financial burden
on consumers for welfare provision raises apprehensions regarding its potential impact on gig
economy services.This article emphasizes the ongoing challenge of adapting legal frameworks
to the changing nature of work in the gig economy, highlighting persistent regulatory gaps and
the need for continued legislative refinement to ensure a fair and comprehensive legal structure
for gig workers.
97
The Code on Social Security (19 of 2019), 2020.
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KEYWORDS:
Gig Economy, Code on Social Security, Platform Workers, Unorganized Workers.
Understanding the Gig Economy

The “Gig Economy”, frequently lauded as the prospective paradigm of labour for the neo-
millennial demographic, embodies a pivotal transformation in the manner individuals engage
with employment and the cultivation of income. The conceptualization of the Gig economy
can be traced back to the emergence of digital platforms, marking a pivotal shift in the nature
of work. The term ‘gig’ itself, originating from jazz musicians in 1915, referred to various
performances. However, its contemporary relevance surfaced post-World War II, during a
global economic crisis, prompting the exploration of alternative job opportunities. Capitalist
economies, cognizant of the need for employment security, witnessed a surge in on-call
workers, contractors, and freelancers, constituting approximately 10% of the American
workforce by 1995.
A watershed moment in the trajectory of the Gig economy materialized with the inception of
Amazon Mechanical Turk in the nascent years of the 21st century, heralding a paradigm shift
in the landscape of labour dynamics through the innovative implementation of crowdsourcing
methodologies specifically tailored for rudimentary and iterative tasks. This groundbreaking
platform, strategically designed to ameliorate challenges that transcend the capabilities of
artificial intelligence, played a pivotal role in galvanizing the demand for gig workers globally.
The seminal nature of this occurrence lies in its pioneering foray into crowdsourced labour,
thereby laying the foundation for a burgeoning Gig economy.This significant event marked the
pioneering entry into crowdsourced labour, laying the groundwork for the growth of the Gig
economy. In the specific context of the Indian subcontinent, the Gig economy became notably
evident around 2013-14, coinciding with the rise of e-commerce platforms and increased
internet accessibility. This timing highlights the close connection between the start of the Gig
economy and the technological changes in how consumers behave and participate in the
economy. The ascendance of the Gig economy in the Indian context has encountered a
discernible impediment, namely, the absence of a well-defined legal framework elucidating the
entitlements and safeguards accorded to gig workers.
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This evolving economic landscape is typified by brief, adaptable employment opportunities,

frequently mediated by digital platforms that link labourers with discrete tasks or projects
governed by various legal statutes. The governance of these engagements is subject to diverse
legal statutes. As traditional employment models undergo significant changes, the gig economy
offers a unique set of opportunities and challenges for the nascent workforce. According to the
Congressional Research Service’s definition of the gig economy, “The collection of markets
matches providers to consumers on a gig (or job) basis in support of on-demand commerce. In
the basic model, gig workers enter into formal agreements with on-demand companies to
provide services to the company’s clients. Prospective clients request services through an
internet-based technological platform or smartphone application that allows them to search
for providers or specify jobs. Providers (gig workers) engaged by the on-demand company
provide the requested service and are compensated for the jobs.”98
According to a recent report by J.P. Morgan Chase & Co., there was a substantial 47-fold
increase in the number of people earning through on-demand platforms between 2012 and
2015. The report estimated that approximately 4.2% of the adult population in the United States
was involved in generating income through online platforms during that period. As of May
2021, around 36% of the American workforce is engaged in the gig economy, either as their
primary source of income or as a secondary job. Between 2000 and 2014, the count of self-
employed individuals in the European Union multiplied, making freelance employment the
most rapidly growing labour segment in the EU. As of 2018, Uber Nigeria reported
approximately 9,000 active Uber drivers in Nigeria. In South Africa, there is an estimated total
of 30,000 gig workers, with taxi drivers constituting roughly half of this number, while delivery
and domestic workers account for the rest.99
THE INDIAN CONTEXT

The trajectory of the gig economy in India unfolds methodically through five distinct phases,
providing a comprehensive historical perspective. The inaugural phase, spanning from the post-
Independence Era (1947-1980), witnessed the embryonic stages of gig work. This period
98
Congressional Research Service, ‘What Does the Gig Economy Mean for Workers?’ (Congressional Research
Service reports, 28 April 2017) <https://crsreports.congress.gov/product/pdf/R/R44365> accessed 03 January,
2024.
99
Diana Farrell and Fiona Greig, ‘Paychecks, Paydays, and the Online Platform Economy’ (J.P. Morgan Chase &
Co, 2016) <https://www.jpmorganchase.com/institute/research/labor-markets/report-paychecks-paydays-and-
the-online-platform-economy> accessed 03 January, 2024.
|Page 32
coincided with significant economic and industrial restructuring, coupled with developmental
initiatives. Noteworthy legislations such as The Minimum Wages Act, 1948,100 and The
Industrial Disputes Act, 1947,101 set the foundational framework for labour regulations during
this period. The subsequent epoch, characterized by Liberalization and Globalization (1991-
2000), marked a paradigm shift in economic policies. This shift created an environment
conducive to the emergence of gig-centric occupations. The Contract Labour (Regulation
and Abolition) Act, 1970,102 regulating the employment of contract labour, gained relevance
in the evolving gig economy landscape. The Information Technology Boom (2000-2010)
constituted a pivotal juncture, where technological advancements catalysed the proliferation of
the gig economy. Freelancers and independent contractors, leveraging digital platforms,
became prevalent. The Information Technology Act, 2000,103 established a legal framework
for electronic commerce and contracts, facilitating the conduct of gig work through digital
platforms. Simultaneously, The Copyright Act, 1957 (Amended in 1994),104 addressed
intellectual property rights, a critical consideration for freelancers providing creative services
in the gig economy. The subsequent era, marked the Rise of Digital Platforms (2010-2015).
Technology served as a conduit connecting gig workers with a diverse array of opportunities.
The Companies Act, 2013,105 regulating the functioning of companies, became particularly
relevant, encompassing those operating digital platforms that played a pivotal role in the gig
economy. Additionally, The Payment and Settlement Systems Act, 2007,106 gained
prominence as digital transactions for gig work increased.In the contemporary landscape,
denoted as the Era of Diverse Gig Sectors since 2015, the gig economy in India has evolved
into a multifaceted ecosystem. It now encompasses an extensive range of sectors, offering
diverse job opportunities and catering to an expanding spectrum of skills. This phase
exemplifies the adaptability and resilience of the gig economy in response to the dynamic
demands of the Indian labour market.
The proliferation of participation in the gig economy has undergone a marked escalation,
particularly since the onset of the coronavirus pandemic. This surge can be attributed to
100
The Minimum Wages Act (11 of 1948), 1948.
101
The Industrial Disputes Act (14 of 1947), 1947.
102
The Contract Labour (Regulation and Abolition) Act (37 of 1970), 1970.
103
The Information Technology Act (21 of 2000), 2000.
104
The Copyright Act (14 of 1957), 1957.
105
The Companies Act (18 of 2013), 2013.
106
The Payment and Settlement Systems Act (51 of 2007), 2007.
|Page 33
multifarious factors, notably including the exigent need for employment opportunities during
a critical juncture. However, this surge was accompanied by job insecurity and
vulnerability.The International Labour Organization (ILO) had estimated that 77 percent of
Indian workers, despite working an average of 50 hours per week, are considered vulnerable.
The taxonomy of gig economy enterprises reveals a discernible categorization comprising four
distinct types of work platforms: i) Crowd work, ii) Delivery, iii) Online freelance, and iv)
Transportation platforms. The gig economy manifests itself as a cohesive and evolved
organizational field wherein commonalities in task execution across disparate platforms serve
as indicative markers of a mature and standardized operational landscape.The classification of
platform-based work unveils a tripartite division into capital and labour platforms. 107 The first
category encompasses “click-work” platforms, where workers are engaged online for brief
assignments. The second category involves platforms facilitating the connection between
workers and clients for manual tasks. Lastly, the third category pertains to platforms supporting
long-term employment, exemplified by “work-on-demand” services such as driving or delivery
jobs orchestrated and overseen by platform aggregators. Delivery tasks linked to food
aggregators fall within this third category.Defining labour precarity in the context of platform-
based work remains elusive, lacking a uniform characterization across platforms. In contrast to
conventional employment, characterized by its socially secure, long-term, and full-time nature
with wages sustaining a decent livelihood, the gig economy introduces a paradigm shift in
labour relations and job structures.
In light of the prevailing economic conditions, India has embarked upon a thorough
examination of the digital economy’s potential as a catalyst for economic expansion and the
generation of employment opportunities. The Ministry of Electronics and Information
Technology has emphasized the significance of investing in the digital economy to foster
sustained economic growth and create secure employment prospects. Projections indicate that
by the year 2025, such investments have the potential to yield substantial revenue amounting
to $1 trillion and contribute to the generation of up to 65 million jobs. 108The realm of digital
107
Newlands, G., ‘Algorithmic Surveillance in the Gig Economy: The Organization of Work through Lefebvrian
Conceived Space’ (Organization Studies, 2021) 42(5) 719-737 <https://doi.org/10.1177/0170840620937900>
accessed 05 January 2024.
108
Ministry of Electronics and Information Technology, ‘India's Trillion Dollar Digital Opportunity’, Government
of India <https://www.meity.gov.india_trillion-dollar_digital_opportunity.pdf/>accessed 03 January, 2024.
|Page 34
platforms, delineated as multifaceted marketplaces that converge service providers, consumers,

and labourers via shared tools to proficiently match supply with demand, emerges as a
promising avenue to realize these aspirations.109Significantly, in India, there exists a cohort of
approximately 15 million freelancers actively providing services through internet-based
platforms.The principal source of employment within digital platforms predominantly revolves
around gig work, encompassing temporary positions cantered on specific tasks. As depicted in
the figure below, individuals engaged in online gig work exhibit a diverse range of skill sets
and possess varying degrees of socio-economic capital. Within this landscape characterized by
uncertainty and diversity, encapsulating workers who are vulnerable, precarious, and
heterogeneous as they integrate into this burgeoning sector, the imperative for labor rights
concerning online gig work remains unmistakably apparent.
Table 1: Job Creation Potential in Gig Economy
A pivotal milestone in gauging the magnitude of gig economy prevalence emanates from a
comprehensive research endeavor undertaken by Ernst and Young in 2017. The initiative,
109
Nick Srnicek, ‘Platform Capitalism, WordPress, https://mudancatecnologicaedinamioecb/ accessed 03
January, 2024.
|Page 35
titled “Future of Jobs in India110”, unveiled salient insights, disclosing that a substantial 24%
of the global contingent of independent workers emanates from India. This statistical revelation
positions India as the second-largest contributor to the global freelance workforce, trailing only
behind the United States. Such empirical evidence underscores the transformative impact of
the gig economy on the Indian employment milieu.Comparative global perspectives are
elucidated through statistics presented in the World Development Report 2019, indicating
that less than 0.5% of the total active workforce worldwide is engaged in gig economy pursuits,
with an even more modest representation of 0.3% in developing nations. These statistics
underscore the nascent but burgeoning nature of the gig economy as a fraction of the global
employment paradigm.The economic ramifications of the gig economy are profound, with a
turnover exceeding an impressive $82.4 billion in 2017 alone. This fiscal phenomenon is
underscored by an annual growth rate of 67%, signaling a trajectory of sustained expansion
within the market. Forecasts for the global gig economy anticipate a cumulative revenue of
approximately $350 billion by the denouement of 2021. Furthermore, authoritative projections
from Statista, a reputable Business Data Platform, posit a substantive increase to $455 billion
by the year 2023, indicating an upward trajectory reflective of the sustained growth and
maturation of the gig economy on a global scale. This economic dimension underscores the
transformative impact of gig work as a formidable and dynamic contributor to the
contemporary economic landscape.111
The gig economy in India, currently valued at $1.5 billion, is poised for rapid expansion in the
foreseeable future. The contemporary labour landscape has witnessed a discernible surge in the
prevalence of gig workers vis-à-vis the broader workforce, marked by a notable escalation from
0.54% in the fiscal year 2011-12 to 1.33% in the fiscal year 2019-2020. The empirical data
further indicates that during the fiscal year 2020-2021, a substantial cohort of 77 lakh (7.7
million) workers actively participated in the gig economy. Of paramount significance is the
prognostication that the gig workforce is poised for exponential growth, anticipated to burgeon
to 2.35 crore (23.5 million) workers by the fiscal year 2029-2030.112Predominantly centred
110
Ernst and Young LLP, ‘Future of jobs in India: A 2022 perspective, FICCI, NASSCOM, & EY
<https://cdn.ey.com/echannel/in/en/services/tax/future-jobs-india/ey-future-of-jobs-infographic.pdf.> accessed
03 January, 2024.
111
Vishesh Sharma, ‘Status of Labour Laws in the Gig Economy, Medium,’
<https://medium.visheshsharma/status-of-labour-laws-in-the-gig-economy,> accessed 05 January 2024.
112
NITI Aayog, ‘India’s Booming Gig and Platform Economy: Perspectives and Recommendations on the Future
of Work,’ Government of India <https://www.niti.gov.in/2022-06/25th_June_Final_Report_27062022.pdf>
accessed 05 January, 2024.
|Page 36
around household, food, and transportation services, key players in India's gig economy
landscape include prominent platforms such as Swiggy, Zomato, Ola, and Uber.Notably, the
labour dynamics within these platforms deviate from the conventional employer-employee
paradigm observed in India. Food delivery personnel affiliated with digital platforms operate
outside the purview of standard labour regulations.A salient feature of the Indian gig economy
is the prevalent use of contract workers. Companies leverage independent contractors or
freelancers instead of traditional employee hiring practices. This strategic choice affords
businesses the flexibility to circumvent obligatory benefit payments and compliance with
labour laws, including those governing minimum wage standards and social security
contributions.
In light of thistrajectory, a meticulous examination of the legal framework enveloping gig

workers becomes imperative. The intricacies of statutes governing this dynamic workforce
necessitate a comprehensive scrutiny to ascertain their adequacy and efficacy in safeguarding
the rights and interests of gig workers. Such scrutiny is indispensable for fostering a nuanced
understanding of the legal ramifications associated with the expanding gig economy, thereby
informing potential legislative refinements or innovations to address the evolving nature of
labour relationships in the contemporary employment paradigm.
EVOLUTION AND ANALYSIS OF THE LEGAL PROVISIONS IN INDIA

The transformative trajectory of technology alongside the burgeoning gig economy has
profoundly restructured the traditional framework of work organization, thus posing substantial
challenges to the established landscape of labour laws. These laws, designed specifically for
the labour sector, have historically aimed to comprehensively delineate and safeguard the rights
of both employers and workers within this sphere. The labour sector, operating within the
precincts of a specialized legal framework, seeks to furnish a comprehensive modus operandi
for the demarcation and safeguarding of the rights inherent to both employers and workers
within this dynamic industry. Within the intricate tapestry of labour relationships,
quintessential archetypes prevail, encompassing:
i) The paradigmatic Employer-Employee nexus;

ii) The contractual engagement of Labor;
iii) The transitory status of Migrant Workers;
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iv) The nuanced landscape of Workers in the Unorganized Sector;

v) The burgeoning presence of Gig Workers.
In synchronization with the provision of safeguards for traditional employment arrangements,

labour laws extend their purview to encompass the protection and recognition of employees,
contract laborers, and denizens of the unorganized labour sector. These constituents, in
adherence to specific legislations such as the Minimum Wages Act 113, Payment of Bonus
Act,114 Employee Provident Fund Act,115 Payment of Gratuity Act,116 and The Equal
Remuneration Act,117 are entitled to an array of benefits, including medical and insurance
coverage. Regrettably, within the extant labour legislative apparatus of the nation, gig workers
find themselves bereft of access to the aforementioned array of benefits.
In the Indian labour landscape, a tripartite classification distinguishes three principal categories
of workers, namely:
i) Government Employees; ii) PSU Employees; andiii) Private Sector Employees.
This taxonomy encapsulates the foundational structure within which employment relationships
are construed and labour dynamics negotiated. The regulatory framework governing this
multifaceted employment spectrum is underpinned by a series of legislative instruments, each
catering to distinct facets of labour welfare and protection.The Factories Act 118 constitutes a
seminal intervention directed at orchestrating safety protocols for the cadre of workers
ensconced within industrial edifices. Simultaneously, The Workmen’s Compensation Act 119
assumes a pivotal role by affording redressal to workmen or their bereaved families in instances
of occupational mishaps culminating in fatality or disablement. Furthermore, the Trade Unions
Act120 assumes a facilitating role by providing a legal imprimatur for the registration of trade
unions, thereby endowing them with the prerogative to engage in collective bargaining.The
Minimum Wages Act,121 in consonance with egalitarian principles, compels employers to
113
114
The Payment of Bonus Act (21 of 1948), 1965.
115
The Employees' Provident Funds and Miscellaneous Provisions Act (19 of 1952), 1952.
116
The Payment of Gratuity Act (39 of 1972), 1972.
117
The Equal Remuneration Act (25 of 1976), 1976.
118
The Factories Act(63 of 1948), 1948.
119
The Workmen’s Compensation Act (8 of 1923), 1923.
120
The Trade Unions Act (16 of 1926), 1926.
121
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adhere to stipulated wage rates ordained by governmental authorities, thereby circumventing

exploitative labour practices. In a marked departure, the Unorganized Workers’ Social Security
Act122stands as a watershed legislative initiative, conferring welfare benefits upon workers
inhabiting the unorganized sector. This legislative edifice, conceived with an altruistic purpose,
emanated from the imperative to address the susceptibility of such workers to accidents and
criminal predation engendered by their socio-economic vulnerability.
Section 3 of the Unorganized Workers’ Social Security Act 123 mandates the Central
Government’s perpetual endeavour in devising welfare programs encompassing aspects such
as life and disability coverage, health and maternity benefits, and old-age protection, among
other salient facets germane to the well-being of unorganized sector workers. In tandem, State
Governments are enjoined to periodically formulate schemes pertaining to provident funds,
housing, employment injury benefits, and kindred provisions, thereby fortifying the scaffolding
of social security enveloping this labour demographic. Regrettably, the laudable legislative
framework encounters a formidable impediment in the form of systemic corruption, a pervasive
malaise that obstructs the expeditious and efficacious disbursement of the aforementioned
entitlements.Despite the plethora of legislations governing the contours of labour law, the
protection of rights for gig workers remained conspicuously absent from the legal landscape
until the threshold of 2020. This temporal void underscored a lacuna in legislative foresight,
necessitating subsequent legal developments to redress the hitherto unaddressed rights and
protections germane to the gig economy paradigm.
In the context of the Indian gig economy, the nomenclature “gig worker” designates an
individual engaged in labour activities that deviate from traditional employer-employee
paradigms. Within the Indian economic landscape, this classification bifurcates into two
principal subsets:
i) Platform Workers; and
ii) Non-Platform Workers.
Platform workers pertain to individuals who partake in labour through algorithmically

mediated online platforms, exemplified by entities such as Amazon or Uber. These platforms
employ digital interfaces to connect workers with customers. Conversely, non-platform
122
The Unorganized Workers’ Social Security Act (33 of 2008), 2008.
123
Ibid.
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workers operate beyond the purview of such digital interfaces, encompassing vocations such
as construction labour, daily wage earners, and temporary workers engaged in non-
technological roles. The realm of temporary employment has witnessed a notable expansion,
attributable to its inherent advantages, including flexibility in selecting workdays, holidays,
shifts, and preferred employers. Workers within this domain enjoy the autonomy to determine
the duration of their association with an organization, deviating from conventional fixed job
arrangements. The advent of the gig economy has ushered in a transformative trend, wherein
conventional full-time employment structures progressively yield ground to independent
contractors and freelancers.Nevertheless, the indeterminacy characterizing the employment
relationships of gig workers renders them susceptible to a plethora of risks, comprising
inadequate remuneration, extended working hours, absence of remunerated sick leave,
deficient workplace safety protocols, and a dearth of structured dispute resolution mechanisms.
Consequently, gig workers find themselves bereft of legislative protections pertaining to the
right to unionize, engage in collective bargaining, or avail themselves of equitable hiring and
termination practices. This legal void further compounds the vulnerabilities inherent in the
employment arrangements of gig workers.
The Indian courts, in establishing the jural employer-employee relationship, which

encompasses unveiling ‘sham contracts’, have transcended the common law test of ‘control’
over the manner of work. This expansion includes consideration of a multitude of factors such
as the powers to appoint, dismiss, and take disciplinary action, ownership of equipment,
prescription of standards for the quality of output, economic dependence on the employer, and
other relevant aspects.124The Industrial Disputes Act, 1947,125 defines a “workman” in Section
2(s) as any person, including an apprentice, engaged in manual, unskilled, skilled, technical,
operational, clerical, or supervisory work for hire or reward. This definition encompasses
individuals dismissed, discharged, or retrenched in connection with an industrial dispute.
Exclusions from the definition include thosesubjects to military or naval acts, employed in
police services, in managerial or administrative roles, or, if in a supervisory capacity, earning
wages exceeding ten thousand rupees per month or primarily performing managerial functions.
124
Sushilaben Indravadan Gandhi v New India Assurance Co. Ltd. (2021) 7 SCC 151.
125
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In the case of Dharangadhara Chemical Works v. State of Saurashtra,126 the Supreme Court
examined the defining features of a “workman”. The court highlighted that the primary
difference between a workman and an independent contractor rest on the fact that the former
commits to performing the work personally, whereas the latter undertakes to have other
individuals carry out the work. Furthermore, in D.C. Dewan Mohideen Sahib v. The Industrial
Tribunal, Madras,127the Supreme Court held that the categorization of a worker as an
independent contractor by the employer should not be taken at face value.In the case of Balwant
Rai Saluja v. Air India Ltd.,128 the Supreme Court, after reviewing a string of authorities, held
that “the relevant factors to be taken into consideration to establish an employer-employee
relationship would include, inter alia: (i) who appoints the workers; (ii) who pays the
salary/remuneration; (iii) who has the authority to dismiss; (iv) who can take disciplinary
action; (v) whether there is continuity of service; and (vi) the extent of control and supervision,
i.e., whether there exists complete control and supervision”. It must be mentioned however,
that in the U.K., “workers” from a distinct category as against “employees”, with only the latter
enjoying the full extent of employment benefits, regardless, the judgment had given fresh
impetus to the movement for gig worker rights. The Indian gig economy currently faces a
critical juncture, marked by the Indian Federation of App-based Transport Workers (referred
to as ‘IFAT’ or ‘the Federation’) initiating a Public Interest Litigation in September 2021 with
the Supreme Court. The litigation aimed to secure social security benefits for gig workers.129
Taking the example of drivers for Ola and Uber, although the functioning of the drivers is
regulated by the platforms to some extent, with various restrictions such as fixed fares and a
mandatory rating system, drivers still retain a significant degree of independence. This
autonomy is evident in the absence of specific working hours and the freedom to join or leave
the platform at their discretion. Additionally, there is no continuity of service, as drivers have
the option to provide their services at will and opt out of the platform whenever they choose.
This indicates that Uber and Ola exercise a limited amount of control over the drivers, and
there does not exist ‘complete control and supervision’.Therefore, based on the above analysis,
we can conclude that, as of now, gig workers do not fall under the ambit of “workman” as
defined under Section 2(s) of the Industrial Disputes Act, 1947.Many of these platforms, such
126
Dharangadhara Chemical Works v State of Saurashtra AIR 1957 SC 264.
127
D.C. Dewan Mohideen Sahib v The Industrial Tribunal, Madras AIR 1966 SC 370.
128
Balwant Rai Saluja v Air India Ltd. (2014) 9 SCC 407.
129
The Indian Federation of App - Based Transport Workers, (IFAT) v Union of India, W.P.(C) No.-001068 / 2021.
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as Uber and Ola as discussed above, disclaim their role as employers by asserting their lack of
direct control over workers. Although peer-to-peer platforms do not exert the same level of
control over workers as traditional employers, they still wield significant influence over how
the work is performed. To address workers in the gig economy, labour regulations should be
expanded to encompass peer-to-peer platforms that materially impact the working conditions
of workers.Simultaneously, it is essential to recognize that platform-based entities offer
opportunities that differ significantly from those provided in traditional employment. This
includes granting workers autonomy to customize their work schedules, with work-time
flexibility being a distinctive feature of the gig economy. Existing labor laws often fail to
account for the opportunities afforded by this gig economy model, as gig workers have the
ability to determine their own working hours, a departure from conventional rules governing
schedules, holidays, working hours, and mandatory rest periods.
Efforts have been made by numerous courts and scholars to extend protection to all workers
whose autonomy has diminished in this new economic paradigm, regardless of whether there
exists dependency or subordination. However, categorizing gig workers as employees may
have substantial legal consequences, potentially subjecting workers to all labour regulations,
which could curtail the work-time flexibility characteristic of the gig economy.To address this
issue, legislative intervention is necessary. The creation of a new worker category known as a
‘dependent contractor’ is proposedan intermediary status positioned between an independent
contractor and an employee. This step aims to bolster labour rights for workers in the gig
economy. The notion of a ‘dependent contractor’ was suggested by the ‘Taylor Review of
Modern Working Practices’,commissioned by the UK government. The Taylor Review
advocates expanding the definition of ‘worker’ to extend statutory employment protections to
a broad spectrum of workers in the gig economy recognized as ‘dependent contractors’.
The crucial question however arose: Could this traditional legal classification of
“employee/workman” be applied to Gig workers in the contemporary economy?
In light of the acknowledged significance and benefits attributed to gig workers, the imperative
for legislative measures safeguarding their rights became evident. This exigency was addressed
in 2020 when the Government promulgated four new labour laws. However, despite this
legislative endeavor, the provisions specifically pertaining to gig workers were incorporated
only within the ambit of the Code on Social Security, 2020. This quartet of laws comprises:
|Page 42
i) Industrial Relations Code, 2020: Primarily applicable to employees within industrial units,
this legislation excludes gig workers, whose occupational fluidity and absence of a fixed place
of employment render them ineligible. Consequently, statutory frameworks governing the right
to form unions, engage in collective bargaining, or ensure equitable hiring and termination
practices find no application in the context of gig workers.130
ii) The Occupational, Health, Safety and Working Conditions Code, 2020: This legislation,
regrettably, fails to extend its purview to encompass gig workers. This omission assumes
heightened concern, particularly given the precarious circumstances in which many gig
workers voluntarily place themselves, notably evident during the exigencies of the pandemic.
iii) Code on Wages, 2019:131 Gig workers find themselves excluded from the coverage of this
legislation, thereby denying them the entitlement to minimum wages. This lacuna underscores
a notable gap in the legal framework, thereby compromising the economic rights of gig
workers.132
iv) Code on Social Security, 2020: Singularly constituting the legislative bulwark for gig
workers, platform workers, and those operating within the unorganized sectors, this code
delineates an array of provisions. Encompassing health and maternity benefits, pension
security, educational benefits, provident funds, accident coverage, and more, this legislative
edifice is comprehensive in its scope. Notably, it extends the ambit of coverage to include life
and disability insurance for the benefit of the marginalized and vulnerable sections of the
workforce.The selective integration of provisions for gig workers exclusively within the Code
on Social Security, 2020 underscores the imperative for a nuanced and context-specific
legislative approach to address the distinctive characteristics and challenges faced by this
burgeoning segment of the labour force.133
The term “gig worker”, as articulated in Section 2(35) of the statute, conveys a nuanced
definition, encapsulating an individual whose occupational endeavours transpire beyond the
purview of the traditional employer-employee paradigm. More precisely, it denotes an entity
actively engaged in labour or contributing to a work arrangement, garnering remuneration from
130
The Industrial Relations Code (35 of 2020), 2020.
131
The Code on Wages (19 of 2019), 2019.
132
The Occupational, Health, Safety and Working Conditions Code (37 of 2020), 2020.
133
The Code on Social Security (36 of 2020), 2020.
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such undertakings, conspicuously devoid of the conventional employer-employee relationship.

The intention behind this initiative may have been to formulate a sufficiently flexible
definition; however, the absence of legislative guidance is likely to engender confusion in terms
of implementation, thereby giving rise to potential litigation.This issue is particularly salient,
as litigation concerning gig work has been pervasive on a global scale. In February 2021, the
Supreme Court of the UK rendered a landmark decision in the case of Uber B.V. and others v
Aslam and others,134 affirming that drivers associated with a prominent ride-hailing platform
were deemed “workers”. While this verdict holds considerable significance for both gig
workers and the broader gig economy, its implications have already become the focal point of
intense discussions in the U.K. 135 Simultaneously, this development aligns with the European
Union's initiation of first-stage consultations aimed at enhancing working conditions for
individuals engaged in digital labour platforms. This process may lead to legislative measures
by the conclusion of 2021.136 Considering the global momentum towards regulating gig work
and the gig economy, particularly in light of challenges precipitated by the pandemic, it appears
inevitable that the absence of guidance within the Code holds the potential for significant
litigation. This is especially anticipated once the Code is implemented and the accompanying
Rules are finalized.
In tandem, Section 2(61) elucidates the concept of a “platform worker” as a person involved
in, or embarking upon, the domain of platform work. The statutory definition abstains from
obfuscation, providing clarity on the scope and delineation of individuals encompassed within
this category. Furthermore, the statutory provision under Section 2(86) delineates the contours
of an “unorganised worker” with meticulous precision. Encompassing home-based workers,
self-employed individuals, and wage workers within the unorganised sector, this definition also
extends its ambit to include those within the organised sector who fall outside the protective
mantle of the Industrial Disputes Act, 1947137. In effect, this statutory articulation offers a
comprehensive panorama of the heterogeneous composition characterizing unorganised
labour, thereby fostering a nuanced understanding of the encompassed workforce.“Social
134
Uber B.V. and others v Aslam and others [2021] UK SC 5.
135
John Naughton, ‘Uber's UK Supreme Court defeat should mean big changes to the gig economy,’ (The
Guardian, 2021) <https://www.theguardian.com/commentisfree/2021/feb/27/ubers-uk-supreme-court-defeat-
should-mean-big-changes-to-the-gig-economy> accessed 07 January, 2024.
136
European Commission, ‘Protecting people working through platforms: Commission launches a first-stage
consultation of the social partners’ <https://ec.europa.eu/commission/presscorner/detail> accessed 05 January
2024
137
|Page 44
security”, as defined under Section 2(78), encompasses measures aimed at ensuring access to
healthcare and providing income security, especially in situations involving old age, sickness,
unemployment, invalidity, maternity relief, and work-related injuries or the loss of a
breadwinner. These measures are designed to afford fundamental protection to employees, gig
workers, unorganized workers, and platform workers.
In spite of the aforementioned legislative developments, it is imperative to note that the extant
legal framework, particularly the Code, fails to incorporate gig workers within the ambit of
regulatory provisions pertaining to wages, occupational safety, industrial relations, or trade
union legislation. The lacunae in the regulatory framework vis-à-vis gig workers give rise to
multifaceted concerns, which are explicated in the following:
1. The principal issue with the Code resides in its failure to confer essential employment rights
upon gig workers138 which are indeed accessible only to unorganized workers139, notably in
the areas of guaranteeing minimum wages and ensuring workplace safety measures.
Furthermore, The Code remains silent on creating a distinction in access to social security
benefits between the two sets of workers, namely unorganised workers and gig and platform
workers. Both categories are effectively predicated upon the concept of non-formal work.
2. The legislative landscape has added complexity by introducing numerous distinctions
among various categories of workers. Some assert that platform and gig workers do not
constitute distinct entities but rather facets of a broader paradigm wherein individuals
engage in employment beyond the traditional employer-employee dynamic.The legislative
intent to incorporate gig workers and platform workers within the expansive classification
of unorganized workers is evident through the placement of social security provisions for
all three categories of workers in the same Chapter, namely Chapter IX of the Code.
Additionally, the establishment of a unified National Social Security Board140 further
underscores the legislative commitment to address the social security concerns of gig
workers, platform workers, and unorganized workers collectively.In light of the nuanced
distinctions between these classifications of work, the separate provision and execution of
social security schemes for each category of workers pose inherent challenges.
138
The Code on Social Security (36 of 2020), 2020 s 114(1).
139
The Code on Social Security (36 of 2020) 2020 s 109.
140
The Code on Social Security (36 of 2020) 2020 s 114(6).
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Consequently, there is a potential for pitfalls such as misclassification, arbitrage, and

confusion during the implementation phase.
3. The legislative framework, as delineated in the Code, serves to safeguard the social security
rights of platform (or gig) workers. However, the utilization of discretionary language such
as “may”, and “from time to time” grants the government substantial flexibility. This
flexibility introduces a level of uncertainty for both employers and workers, thereby
warranting a nuanced examination of its implications.In the case of Brahampal @
Sammayand Anr. v. National Insurance Company,141 the court made a pertinent
observation that the term “may” should not be construed as a term of compulsion, but rather
as a provision conferring capacity, power, or authority, thereby implying a discretion
inherent in the context.
The aforementioned deficiencies emanate from a quandary surrounding the classification of

gig workers, entailing deliberations on whether they should be categorized as employees or
workmen under a contract of service, or as independent contractors operating under a contract
for service. This is a contentious issue because determining employment status triggers the
application of diverse labour laws that dictate employers’ responsibilities regarding aspects
like minimum wage, working conditions, social security benefits, and the procedures for
resolving disputes between employers and employees.Presently, the four Labour Codes,
namely, The Code on Wages, 2019, The Industrial Relations Code, 2020, The
Occupational Safety, Health and Working Conditions Code, 2020, and The Code on Social
Security, 2020, have been enacted, consolidating prior central labour laws. These Codes
employ the term ‘employee’, subsuming previous legislation, some of which employed a
definition of “workman” (e.g., the Industrial Disputes Act, 1947), while others utilized the term
“employee” (e.g., The Employees' Provident Funds and Miscellaneous Provisions Act, 1952,
The Employees' State Insurance Act, 1948). These diverse legislative frameworks come with
their own jurisprudence, at times overlapping and at other times diverging, regarding the
determination of employment status.
The Government of Rajasthan Bill, ostensibly designed to address the concerns of platform-
based gig workers, reveals significant shortcomings that undermine its purported objectives.
141
Brahampal @ Sammay and Anr. v National Insurance Company (2021) 6 SCC 512.
|Page 46
The bill establishes a Rajasthan Platform-based Gig Workers Welfare Board with extensive
regulatory and remedial powers. However, its limitations are strikingly apparent. Firstly, the
bill’s myopic focus on platform-based gig workers excludes a substantial portion of the gig
economy, leaving a conspicuous gap in coverage. The inherent class distinction becomes
evident, as the bill prioritizes the welfare of certain gig workers, such as those employed by
aggregator platforms like Uber, while neglecting those engaged in other non-traditional,
unorganised sector jobs. Secondly, the bill fails to redefine the legal relationship between gig
workers and aggregating platforms. By neglecting to integrate gig workers into the category of
regular employees, the bill denies them legally enforceable rights, leaving them vulnerable to
labour law violations and devoid of social security benefits. Furthermore, the omission restricts
customers from holding aggregators accountable for civil wrongs committed by gig workers,
creating a legal void in the employment relationship. Thirdly, the bill places the burden of
welfare provision squarely on consumers. While the specifics of the welfare fund and
associated cess are left to the discretion of the Welfare Board, the inevitable consequence will
be an increase in transaction costs for consumers. This shift of financial responsibility to the
end-user risks disincentivizing the utilization of gig economy services, thus defeating the
purported goal of worker welfare. In essence, the bill, if enacted, not only perpetuates a class-
based approach to gig worker welfare but also fails to address critical issues related to legal
recognition and financial responsibility, raising concerns about its effectiveness and fairness.
CONCLUSION
The evolution and analysis of legal provisions pertaining to the gig economy in India
underscore a nuanced and intricate landscape characterized by substantial challenges and
regulatory lacunae. The conventional labour laws, conceived for traditional employer-
employee dynamics, confront notable strain in accommodating the dynamic contours of gig
work.The diverse Indian labour sector, encompassing various work relationships such as
employer-employee associations, contractual engagements, migrant labour, unorganized sector
labour, and gig labour, underscores the imperative for a comprehensive legal framework. While
extant legislation affords protection and benefits to various worker categories, gig laborers
confront a conspicuous dearth of entitlements, indicative of a legislative lag that endured until
2020.The gig economy in India comprises two discernible categories – platform workers and
non-platform workers – each characterized by distinct attributes. Platform workers engage with
algorithmically mediated online platforms such as Uber or Amazon, whereas non-platform
|Page 47
workers operate in roles outside digital interfaces. The transformative impact of the gig
economy is evident in the paradigm shift from traditional full-time employment to flexible,
independent contractor arrangements. However, this flexibility exposes gig workers to
vulnerabilities like inadequate remuneration, prolonged working hours, and the absence of
legislative safeguards for fundamental rights such as unionization.
The judicial system in India has acknowledged the necessity of differentiating between
employees and independent contractors, transcending the conventional legal concept of
‘control’. The unique features of the gig economy pose challenges to traditional legal
classifications, prompting the need for a nuanced approach. Global initiatives, including the
proposal for a ‘dependent contractor’ status, reflect efforts to extend protections to gig
workers.In 2020, the Indian government introduced four new labour laws, incorporating
provisions specifically addressing gig workers in the Code on Social Security, 2020. While this
code comprehensively encompasses health, maternity benefits, pension security, and more for
gig workers, the exclusion of these workers from other labour laws exposes a disjointed
legislative panorama.The categorization of gig workers as ‘platform workers’ and
‘unorganized workers’ within the Code on Social Security brings clarity, but challenges emerge
during implementation. The discretionary language and potential for misclassification
introduce uncertainty for both employers and workers.In scrutinizing the Rajasthan Bill, which
concentrates on platform-based gig workers, inadequacies in the legal framework become
apparent. The bill’s limitations, such as a narrow focus, failure to redefine legal relationships,
and the imposition of the burden of welfare provision on consumers, raise apprehensions
regarding its efficacy and fairness.In summation, the evolution of legal provisions in India
delineates a struggle to align with the evolving nature of work, particularly within the gig
economy. While strides have been taken to address the rights and protections of gig workers,
substantial challenges and regulatory gaps persist, necessitating ongoing legislative refinement
and adaptation to ensure comprehensive and equitable coverage.
|Page 48
PATERNITY LEAVE LAWS IN INDIA: A CHALLENGE TO THE EXISTING

GENDER NORMS
*SIDDHI NIGAM AND HELI DUBEY
ABSTRACT
This paper critically examines the current landscape of paternity leave legal provisions in India
and assesses its effectiveness in addressing concerns related to parental child-care leave.
Delving into the existing legal framework surrounding paternity leave, the paper underscores
the imperative for gender equality and advocates for shared parenting responsibilities.
Employing a thorough analysis of pertinent case law and scholarly literature, the paper sheds
light on the challenges and barriers faced by fathers seeking to avail paternity leave in India.
Drawing from global examples, the paper explores progressive paternity leave policies
successfully implemented in other jurisdictions, emphasizing their potential benefits for
families, workplaces, and society at large. The private sector's role in providing paternity leave
is scrutinized, presenting insights into practices adopted by companies such as IKEA India,
Flipkart, Zomato, and others, showcasing varying durations of paternity leave.
The paper extends beyond the national context to discuss international conventions and global
trends prevailing in countries like Finland, Portugal, Australia etc., emphasizing the growing
importance of equal parental rights and the gradual evolution toward providing paid parental
leave. The present paper advocates for the adoption of inclusive paternity leave laws,
challenging traditional gender norms, as well as offers recommendations to policymakers,
employers, and stakeholders.
Highlighting the need for paternity leave as a catalyst for promoting gender equality and
reshaping societal expectations, the paper contributes positively to the ongoing discourse on
family-friendly policies and the changing dynamics of gender roles in India. While
acknowledging the promise of the Paternity Bill 2017, the paper proposes improvements for
enhanced clarity, expanded coverage, increased duration, and effective monitoring. It
underscores the pivotal role of paternity leave in achieving gender equity, both within familial
and workplace settings, recognizing it as an essential component in the broader quest for
societal transformation.
KEYWORDS:
Paternity leave, gender-norms, workplace, private sector, legislation, bill.
INTRODUCTION
|Page 49
The patriarchal norm preaches that it is the duty of a woman to take care of a child and the
father is considered as a mere bread-earner rather than a parent involved in the upbringing of
the child. Therefore, complying with this gender norm, Paternity leave as a concept is hazily
present in our legal system. Although a few progressive Indian companies have initiated
paternity leave programs for new or expecting fathers, such schemes remain rare. While
paternity leave offers obvious benefits like promoting a balanced household, it is also viewed
as a way for organizations to promote workplace equality. 142
The Legal provisions for paternity benefits are limited to Rules 43-A and 43-AA of the Central
Civil Services (Leave) Rules, 1972.143 In 2017, the Paternity Benefit Bill144 was introduced in
Parliament to address this issue. Additionally, there have been no developments in paternity
benefits in India from 2017 to 2023. This paper will analyse the legal provisions mentioned
above along with discussing the paternity benefits given by certain companies. Further this
paper will shed light on the provisions pertaining to paternity leave in other jurisdictions.
Certain suggestions will be provided to improve upon the existing situation of paternity leave
in India.
RELEVANCE
In current times, employers frequently favour male applicants over equally capable female
applicants, primarily because they are legally required to provide maternity leave and benefits
in the country. However, if paternity leave or benefits also become compulsory for male
employees in India, it would create a fair and equal opportunity for both genders during
recruitment.145 As a result, gender discrimination in hiring would no longer be a concern.
Offering paternity leave or similar benefits and dividing child-rearing responsibilities between
parents would enable the mother to return to work sooner after childbirth, reducing instances
of women sacrificing their careers to care for their children. 146 Moreover, paternity leave or
142
Ananya Mukherjee, 'Analysis of "Paternity Leave" in India' (2022) 5 International Journal of Law,
Management & Humanities 600.
143
The Central Civil Services (Leave) Rules, 1972, G.S.R. 438(E) rule 43A & 43AA.
144
The Paternity Benefit Bill, 2019 (Bill No. 305 of 2019) by M.S. Jothimani,
<https://sansad.in/getFile/BillsTexts/LSBillTexts/Asintroduced/305%20o%202019%20as.pdf?source=legislatio
n> accessed on 15 May 2024.
145
International Labour Organisation, ‘Maternity and paternity at work: Law and practice across the world’
(Geneva, 2014) <https://www.ilo.maternityprotection./> accessed on 15 May 2024.
146
Persson P, Rossin‐Slater M, ‘When Dad Can Stay Home: Fathers’ Workplace Flexibility and Maternal Health’
(National Bureau of Economic Research, 2019) <http://www.nber.org/papers/w25902.pdf> accessed on 15 April
2022.
|Page 50
benefits would strengthen the bond between father and child, allowing the father to play a
significant role in the child's life from birth, benefiting both in the long term. Therefore, it is
crucial to introduce a legal provision for paternity leave or benefits. 147
EXISTING LEGAL PROVISIONS

The Article 26 of International Covenant on Civil and Political Rights148 permits men to
assert their entitlement to paternity leave. This right may be invoked if a national regulation or
policy treats men unfairly by offering maternity leave only to women and no leave for men.149
India does not have a legislation on these lines apart from the 2017 Bill, which has not been
deliberated upon in the Parliament yet.
Cases
In the case of Chander Mohan Jain V. N.K. Bagrodia Public School & Ors, 150 the concept of
paternity leave in private unaided institutions which are of the nature of a school was discussed.
Chander Mohan Jain, a teacher had his paternity leave application rejected and his salary
deducted for the days he had taken leave. Aggrieved by such an act of the school authorities,
he moved to the High Court of Delhi. The respondents argued there is no paternity leave
scheme in the school and the petitioner cannot, thus, be awarded paternity leave. The Court
held that the right to paternity leave exists for all men employed at unrecognized private
schools. In order to reimburse the complainant, the respondent was guided.
In Rakesh Malik v. State of Haryana,151 the petitioner who was a government employee and
his paternity leave was turned down. In his plaint he claimed that currently, there are no official
rules or guidelines in Haryana regarding paternity leave or child care leave for fathers. The
issue was raised in a writ petition which is related to policy-making, and it is up to the State to
consider and make a decision regarding the granting of paternity. The Court, in its capacity to
exercise exceptional jurisdiction under Article 226 of the Constitution of India,152 could not
interfere in the policymaking sphere on this matter.
147
Nimita Aksa Pradeep & Merin George, ‘Paternity Leave Policies: The Sexist Gap in The Indian and Global
Parental Policies’ (2021) 2(1) DME Journal of Law 54.
148
The International Covenant on Civil and Political Rights, 1966 (GA Resolution 2200A XXI), art 26.
149
Karan Jawanda & Sanya Singh, ‘Socio-Legal Framework of Paternity Leave in India: A Critical Analysis’
(2022) 30 Supremo Amicus 195.
150
Chander Mohan Jain v N.K. Bagrodia Public School & Ors (2009)163 DLT 1.
151
Rakesh Malik v State of Haryana, CWP no 3225 of 2013.
152
The Constitution of India 1950 art 226.
|Page 51
Similarly, in Delhi Transport Corporation v. Virender Singh,153 a Delhi Transport

Corporation driver filed a plea for paternity leave, but the Court dismissed the appeal stating
that the DTC had no provisions for paternity leave and that the CCS Paternity Leave guidelines
had not been sanctioned.
The above-mentioned cases hint upon the need of a Paternity Leave legislation which properly
demarcates the purview, applicability, and eligibility.
Central Civil Services (Leave) Rules, 1972

The paternity leave laws in India are restricted to the Central Civil Services (Leave) Rules,
1972, which comprise of Rules 43-A and 43-AA. These rules permit government employees
to take a maximum paternity leave of 15 days, which can be taken within six months of the
child's birth or adoption. However, these rules are not applicable for employees working in the
private sector or informal sectors. This implies that a considerable number of male employees
do not have the opportunity to take paternity leave. 154
Several State governments are also following in the footsteps of the Central government and
extending similar benefits to their respective employees. These include Delhi, Gujarat,
Maharashtra, Rajasthan, etc. Similarly, public sector banks, 155 the Reserve Bank of India offers
paternity leave to their male employees with new-born children. Further even the Section 551A
Railways Code1985 provides for a 15-day period of paternity leave.156
The question arises whether a period of 15 days is sufficient? The mother giving birth to the
child at times suffers from some physical complications before or after delivery or post-partem
depression for which the father needs more leaves. 157 Certain other countries provide leave for
153
Delhi Transport Corporation v Virender Singh 116 (2005) DLT 266.
154
Disha Raman, 'Paternity Leave: A Human Right' (2019) 10 Supremo Amicus 96.
155
Ministry of Finance Government of India, ‘Paternity Leave to Bank Employees’ (PIB, India 08 March 2016)
<https://pib.gov.in/newsite/PrintRelease.aspx?relid=137489> accessed 08 March 2023.
156
Ministry of Railways, Indian Railway Establishment Code 551A (2020).
157
Rehel EM, ‘When dad stays home too: Paternity Leave, Gender, and Parenting’ (Gender & Society, 2014)
28(1) 110–132.
|Page 52
more than a 15-day period like Finland, Portugal, New Zealand which raises a question on the
sufficiency of the days of paternity leave. 158
Paternity Bill 2017

In an effort to protect the rights of working fathers and establish a consistent paternity policy
across all sectors, MP Rajiv Satav introduced the Paternity Benefit Bill2017159(hereinafter
referred as bill) in Lok Sabha. However, the bill was not converted into law, and as of now,
India still does not have a statute for paternity leave. 160
Section 2 of the Bill discusses the applicability of the bill which is not very clear. Following is
covered by the bill “establishment being a factory, mine or plantation including any such
establishment belonging to Government” and “every shop or establishment within the meaning
of any law for the time being in force in relation to shops and establishments in a State” and
“to every man who is self-employed or working in the unorganised sector or in establishments
where less than ten persons are employed”. Proviso clause states that “State Government may,
with the approval of the Central Government, after giving not less than one month’s notice of
its intention of so doing, by notification in the Official Gazette, declare that all or any of the
provisions of this Act shall apply also to any other establishment or class of establishments,
industrial, commercial, agricultural or otherwise”. 161
From the above-mentioned it can be understood that Section 2 does not seem to cover service
sector, Central Government Institution faculty or staff, public sector units’ white-collared staff
etc. under its purview.
The statement of object and reasons of the Bill states that “absence of any paternity leave might
be counterproductive as it may discourage the private sector which is driving women
employment, from hiring, retaining or promoting women” but if the private sector falls under
the ambit of this bill is not very clear. It can be derived from Section 2 proviso that too which
158
World Policy Centre, ‘Do countries guarantee domestic workers access to paid paternal leave?’
<https://www.worldpolicycenter.org/policies/do-countries-guarantee-domestic-workers-access-to-paid-paternal-
leave> accessed on 15 May 2024.
159
The Paternity Benefit Bill, 2019 (Bill No. 305 of 2019) by M.S. Jothimani,
<https://sansad.in/getFile/BillsTexts/LSBillTexts/Asintroduced/305%20o%202019%20as.pdf?source=legislatio
n> accessed on 15 May 2024.
160
Rishi Saraf, 'Paternity Leave - Amending Article 42' (2021) 4 International Journal of Law, Management &
Humanities 2902.
161
Paternity Bill (n 144), s 2.
|Page 53
is subjected to the will of state governments. The Applicability clause needs to be clearer and
drafted in a manner that the ambit of this legislation is clarified. 162
Further Section 3(i) defines a ‘man’ as “(1) employed, whether directly or through any agency,
for wages in any establishment; self-employed or working in the unorganised sector or in
establishments where less than ten persons are employed”. 163 And an establishment under
Section 3(f)means “a factory; a mine; a plantation; an establishment wherein persons are
employed for the exhibition of equestrian, acrobatic and other performances; a shop or
establishment; or an establishment to which the provisions of this Act have been declared under
section 2 to be applicable;” So section 2, section 3(i) & section 3(f) read together also does
not indicate evidently about covering private sector, Central Government Institution faculty or
staff, public sector units’ white-collared staff etc. and majorly deals with shops &
establishment, factory, mines etc. only.
The Bill under Section 4 provides for three situations in which a man is entitled to paid paternity
leave: (i) when his legally wedded wife gives birth to a child, (ii) when a child is born through
surrogacy or adoption, and (iii) when a man legally adopts a child under the age of three
months. In the case of adoption, the paternity benefit will be calculated for a period of fifteen
days from the date the child is given to the adopting father or the legal husband of the
commissioning mother.164 The Bill sets a maximum of 15 days of paid paternity leave for any
man with less than two surviving children, and seven of those days can be taken before the
expected delivery date.165
To be eligible for paternity leave and benefits, an employee must have worked for at least 80
days within the last 12 months leading up to the expected delivery date. The daily wage for
paternity leave should be calculated based on the average wage of the previous three months
of work. The bill allows for a maximum of 15 days of paid paternity leave, which must be taken
within three months of the expected delivery date. This benefit is available to any man with
less than two surviving children. Section 5 of the bill requires the Central Government to create
162
163
Paternity Bill (n 144), s 3(i).
164
Paternity Bill (n 144) s 4.
165
Kanika Tekchandni&MimansaKhangarot, 'Paternity Leave: Breaking Barriers of Gender Conformity' (2021)
2 Lexforti Legal Journal 11.
|Page 54
a scheme to fund paternity benefits, which will cover the costs associated with the benefits
outlined in the Bill. 166Section 6 talks about the procedure by which an employee can apply for
paternity leave.167
Though this Bill is a welcomed step and has many provisions which are beneficial but with
certain amendments it can be channelled into the correct direction.
PRIVATE COMPANY INITIATIVES ON PATERNITY LEAVES

Despite the fact that no legislation till date is in place for providing legal recognition to
paternity leave in India, a number of private companies have included paternity leave and
similar benefits under their company policies. 168 Paternity leave policies of some private
companies operating in India are tabulated below:169
Company Duration of paternity leave
IKEA India Ikea India included in its policy in the year 2017, 6 months paid paternity
leave to all the male employees.
Flipkart The e-commerce giant offers 10 days of paternity leave to its male
employees.
Zomato The food delivery giant provides 26 weeks of paternity leave to its
employees. This leave is applicable to birthing and non-birthing parents and
in cases of surrogacy, adoption, and same-sex partners.
Novartis The pharmaceutical giant, in its company policy provides 26-week paternity
leave for all new fathers. The company policy also clarifies that if both
parents work at Novartis, then both will be able to avail 26 weeks leave
individually.
Google New birthing parents can avail 24 weeks of leave, while surrogate and
adopting parents can take up to 18 weeks of leave.
166
Sangeeta Chakravarty, 'Paternity Leave Laws: A Comparative Analysis of Sweden, USA and India' (2022) 5
International Journal of Law, Management & Humanities 152.
167
168
National Partnership for Women & Families, ‘Expecting Better: A state‐by‐state analysis of laws that help
expecting and new parents’ August 2016 <nationalpartnership.org/our‐work/resources/economic‐
justice/expecting‐better‐2016.pdf> accessed on 14 March 2022.
169
Sangeeta Chakraborty (n 166).
|Page 55
Godrej Godrej provides paternity leave for up to 5 working days.

TATA Group Tata Steel, Tata Motors, Tata Power, and other companies within the Tata
Group offer up to 7 days of paternity leave.
HCL The IT services company offers up to 10 days of paternity leave.
Technologies
Infosys The IT giant Infosys provides up to 5 days of paternity leave.
Hindustan The FMCG giant provides 5 working days of paternity leave.
Unilever Limited
Vodafone Vodafone offers up to 16 weeks of paternity leave to its male employees.
Mindtree The IT services company Mindtree provides 10 days of paternity leave.

Table No. 1 Paternity leave policies of private companies operating in India
INTERNATIONAL PERSPECTIVE
International Conventions relating to equal parental rights

Article 18 of the Convention on the Rights of the Child specifies that “it is the responsibility
of States Parties to acknowledge that both parents share duties regarding the raising and
development of their child. The government should support parents and legal guardians in
fulfilling their obligations and should establish institutions, services, and facilities for the care
of children.”170
Furthermore, Article 10(1) of the International Convention on Economic, Social, and

Cultural Rights highlights the importance of providing broad protection and assistance to
families, especially while they are responsible for raising and educating dependent children.171
170
Nimita Aksa Pradeep & Merin George, ‘Paternity Leave Policies: The Sexist Gap in The Indian and Global
Parental Policies’ (2021) 2(1) DME Journal of Law 54.
171
Sonal Verma &Deonn Nash Lobo, ‘Analysis of Paternity Leave in Modern India and Beyond’ (Mondaq, 21
December 2023) <https://www.mondaq.com/india/employee-labour-relations> accessed on 15 May 2024.
|Page 56
Global trends relating to paternity leave

According to global data from the WORLD Policy Analysis Center, there has been notable
progress in the availability of paid paternal leave over the past 20 years, especially with regards
to the provision of paid leave for fathers. Between 1995 and 2015, the proportion of countries
offering paid paternal leave (which can refer to leave designated for fathers of infants, as well
as paid parental leave available to either parent) has risen from 21% to 52%, indicating a slow
but steady increase. 172
Fig.1 Countries in the world having policies to provide paid paternity benefits to the
employees.
Source: WORLD Policy Analysis Centre Adult Labour database
Countries around the world have varied policies regarding the provision of paternity leaves and
other benefits. Policies of some countries are discussed below: 173
1. Finland: In Finland, parents are given 53 weeks of leave, and since 2013, fathers in Finland
have been granted nine weeks of paternity leave until the child reaches the age of two, which
172
Alison Earle and Jody Heymann, ‘Paid Paternity Leave and Family Friendly Policies: An Evidence Brief’
(UNICEF, July 2019) <https://www.unicef.org/media/95086/file/UNICEF-Parental-Leave-Family-Friendly-
Policies-2019.pdf> accessed 13 March 2023.
173
Peter Moss, Ann-Zofie Duvander& Alison, ‘Parental Leave and Beyond: Recent International Developments,
Current Issues and Future Directions (London Policy Press, April 2019) 23-239
<https://www.parental_leave_and_beyond_recent_international_developments_current_issues_and_future_direc
tions/> accessed on 15 May 2023.
|Page 57
cannot be transferred to the mother.174 The rates of payment for parental benefits range from
70% to 100%.
2. Portugal: Portugal currently operates a system that is not gender-specific, where employees
are entitled to 120 days of fully paid leave based on their salary, with an additional 30 days
of optional leave that is paid at 80% of their salary. 175
3. Australia: The Australian Government offers up to 18 weeks of paid parental leave at the
national minimum wage to eligible employees who are the main caregivers for their
children. These employees are also permitted to take unpaid parental leave. 176
4. New Zealand: New Zealand is under the governance of the "Parental Leave and
Employment Protection Act, 1987", which provides entitlements to partners or fathers after
the birth or adoption of a child. They can take an unpaid leave of up to two weeks, either
immediately after or around the time of the birth or adoption.
CONCLUSION & SUGGESTIONS

The Paternity Bill 2017 is a promising step toward this direction but there is a requirement to
properly demarcate the purview, applicability and eligibility. Following are certain suggestions
in order to make the bill more concrete:
 Clarity is required regarding the extent and coverage of various sectors and types of
employees. There is a need to shed light on whether private sector is included under the
purview of the bill or not with explicit provision in order to avoid any confusion when it
comes to implementation
 The term "legally wedded wife" excludes children born out of live-in relationships, making
it necessary for the employee to be married under the law to qualify for paternity benefits. 177
 The duration of paternity leave should be increased to a minimum of 3-weeks as opposed to
the currently proposed 15 days limit.
174
Eerola P and others, ‘Fathers’ Leave Take-up in Finland: Motivations and Barriers in a Complex Nordic Leave
Scheme’ (2019) 9 (4) SAGE Open <https://journals.sagepub.com/doi/full/10.1177/2158244019885389>accessed
8March 2023.
175
Kanika Tekchandni&MimansaKhangarot, 'Paternity Leave: Breaking Barriers of Gender Conformity' (2021)
2 Lexforti Legal Journal 11.
176
Australian Government, Parental Leave Pay, (Australia Services, 27 March 2023
<https://www.servicesaustralia.gov.au/parental-leave-pay#:~:text=Parental%20Leave%20Pay%20is%20based,
which%20is%2090%20payable%20days> accessed 28 March 2023.
177
Ramasayi Gummadi, 'Paternity Leave Policy in India: A Critical Analysis' (2021) 4(3) IJLMH 420
<https://www.ijlmh.com/wp-content/uploads/Paternity-Leave-Policy-in-India-A-Critical-Analysis.pdf>
accessed 20 March 2023.
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 There are concerns regarding the monitoring of implementation of the provisions on the un-
organised sector such as domestic helps, contract labourers etc.
When it comes to gender equity at home and at work, paternity leave is a positive development
because it reflects changes in marriages, parental duties, and gender norms. The benefits of
paternity leave also extend to the mother, who benefits from improved health and financial
outcomes, more equitable distribution of household duties, and stronger parent-child
relationships.
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HACKED HUMANS, HOLLOW RIGHTS: SAFEGUARDING AGAINST

BIOHACKING VULNERABILITIES IN THE WORKPLACE AND NAVIGATING
REMEDIAL STRATEGIES FOR THE FUTURE
*DESHNA CHATURVEDI AND RISHABH SONWANI
ABSTRACT
The Indian workplace is witnessing a transformative force in the form of biohacking, which
promises to redefine human capabilities in professional settings. This emerging trend of
enhancingproductivitythroughcognitiveaugmentation,neuro-implants,andoptimizedsleep
cycles raises critical considerations within the framework of labour and employment laws.It is
essential to strike a balance between empowering worker autonomy and averting
discriminatory practices, based on augmented skills. This highlights the need for clear
policieswithintheIndianemploymentlawlandscapetoensuretheprotectionofemployees’
interests. Traditional concepts of occupational harm are insufficient for addressing the
challenges posed by biohacking in the workplace. The need for novel legal frameworks to
determine liability and compensation mechanisms for biohacking-related harm is evident. The
biological risks inherent in biohacking, such as malfunctioning cybernetic implants and
unforeseenhealthconsequences,introduceanewdimensiontoemployeewelfareconcernsin the
Indian context. Additionally, the collection and utilization of personal biological data
raisesprivacyissues,whichrequirecomprehensivesafeguards.ExistinglabourlawsinIndia are
inadequate in addressing these evolving challenges, signaling the necessity for updated
legislation that can address the unique intricacies of the Indian workplace. There is an urgent
need for specific legislation to address the challenges posed by biohacking in the Indian
workplace and to ensure the protection of employee interests.The responsibility for upholding
workplace ethics falls on employers, who must take a proactive approach. This study
emphasizes the need for a comprehensive policy framework that adheres to ethical principles
within the context of Indian labour and employment laws.
Thesepoliciesshouldaddresskeyissuessuchasdataprivacyprotectionandthepreventionofdiscrimi
natorypractices,providingavitalguidefornavigatingtheunchartedterritoryof human
augmentation in the Indian
workforce.InlightofthenumerouschallengesposedbybiohackinginIndia,thegovernmentmustena
ct exclusive legislation that not only recognizes the potential of these technologies but also
safeguards the rights and well-being of employees. The legal and ethical implications of
|Page 60
biohacking require a robust legal framework that prioritizes worker autonomy, employer
responsibility, and strict ethical standards.
Introduction
No longer confined to the realm of science fiction, biohacking is gradually weaving itself into
the professional tapestry. Recent developments like Elon Musk's confirmation of a successful
brain microchip implant in humans, Neuralink, and the microchipping initiatives by companies
like Three Square Market and BioTeq serve as tangible examples. 178 These instances showcase
the allure of biohacking, and also raise crucial questions about informed consent, potential
coercion, and the ethical implications of such practices within the workplace. 179
India's legal framework, while evolving, presents a complex picture when it comes to
biohacking. The Constitution offers fundamental rights like privacy and equality, forming the
bedrock of individual protections. However, these rights lack specific interpretations in the
context of emerging biohacking practices. Existing labour laws primarily focus on ensuring a
healthy working environment, falling short of addressing the nuanced challenges posed by
biohacking. Further, the Information Technology Act, 2000, offers some safeguards for data
privacy, but its applicability to biohacking-generated data remains untested.180This patchwork
of provisions leaves significant gaps, creating uncertainty and potentially jeopardizing
individual rights in the biohacking space.
DEMYSTIFYING BIOHACKING
Overview
Biohacking, the practice of manipulating one's biology to achieve desired outcomes,
encompasses a diverse spectrum of approaches. 181 Broadly, we can categorize these into three
178
Gallo S., “Microchipping Employees: A Rising Trend in the Future of Work?” Training Industry, (28 Jan 2020)
<https://trainingindustry.com/articles/learning-technologies/microchipping-employees-a-rising-trend-in-the-
future-of-work/>accessed on 15 May, 2023.
179
Press Release, Three Square Market, “Three Square Market Microchips Employees Company-Wide” (20 July
2017, PRLog Press Release Distribution) <https://www.prlog.org/12653576-three-squaremarket-microchips-
employees-company-wide.html> accessed on 15 May 2023.
180
The Information Technology Act, 2000 (21 of 2000); now The Digital Personal Data Protection Act, 2023 (22
of 2023).
181
“How to Biohack as a Beginner” (jinfinti precision medicine) <https://www.jinfiniti.com/unlocking-the-basics-
an-introduction-to-biohacking-f20capabilities> accessed on 15th May 2023.
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main categories: research-validated lifestyle modifications, quantified self-tools, and extreme

interventions like implantable and biochemicals.
Tracing the genesis of Biohacking

The seeds of biohacking were sown in the fertile ground of 1960s and 70s science fiction,
where concepts like cyborgs and body modification captured the imagination of audiences.
Early experiments emerged in the following decades, with pioneers exploring glucose-
monitoring implants and artistic subdermal adornments. 182 The turn of the millennium saw the
"Quantified Self" movement gain momentum, empowering individuals to optimize their health
and performance through self-tracking tools and biofeedback. Today, vibrant DIY biohacking
communities delve into diverse territory, experimenting with gene editing, manipulating gut
microbiomes, and even bioprinting tissues. 183
Techniques and approaches of Biohacking

At the accessible end of the spectrum lies research-validated lifestyle modifications. These
science-backed approaches, such as optimizing sleep patterns, dietary adjustments, and
exercise routines, offer well-understood and relatively safe avenues for individuals to enhance
their well-being. Additionally, quantified self-tools like wearable devices and fitness trackers
empower individuals to track and analyse their biometric data, providing valuable insights for
managing health and performance. However, the realm of extreme biohacking delves into far
less explored territory, raising concerns about safety, ethics, and potential misuse. This
category encompasses implantable devices and interventions beyond typical medicine, often
with limited research and potentially significant unknown risks.
Genetic engineering, often touted as the cutting edge of extreme biohacking, presents a
particularly complex case. While potentially holding immense promise for treating diseases
and enhancing human capabilities, it also opens Pandora's box of ethical dilemmas. Infamous
"biohackers" experimenting with full-body microbiome transplants, telomerase gene therapy
for anti-aging, and CRISPR for muscle strength enhancement have drawn sharp criticism from
182
Michael, Katina, Michael, and Rodney Ip, “Microchip implants for humans as unique identifiers: a case study
on VeriChip” (2008, University of Wollongong).
183
Sanchez “We Are Biohackers: Exploring the Collective Identity of the DIYbio Movement” (2014)
<https://www.researchgate.net/publication/284727537_We_are_Biohackers_Exploring_the_Collective_Identity
_of_the_DIYbio_Movement> accessed 20 Jan 2024.
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the scientific community due to the lack of rigorous research, potential safety hazards, and
ethical concerns surrounding human germline editing. 184 The biohacking market, projected to
reach USD 83 billion by 2032, exhibits remarkable growth potential driven by North America's
dominance (39% revenue share) and factors like strong research infrastructure, high disposable
income, and less stringent regulations. 185
Ethical Crossroads and Socioeconomic Disparities in the Democratization of Biohacking

While the democratization of biological technologies through accessible tools and a thriving
"biohacker" community opens doors to exciting possibilities, it also ushers in a wave of
potential misuse. The ease of access to technologies like CRISPR gene editing kits, though
potentially empowering individuals, carries the chilling specter of accidental or intentional
creation and release of harmful biological agents. This risk is compounded by intense
competition in the commercial sphere, where the pressure to be first can lead to premature
product launches and misleading marketing, eroding consumer trust and possibly endangering
health and safety.
Beyond the immediate risks, the promise of biological progress faces the hurdle of unequal
access. The current landscape, where wealthier nations lead the innovation race and stand to
benefit most from disease burden reduction, threatens to further widen the socioeconomic gap.
Within societies, skyrocketing costs associated with cutting-edge therapies like gene editing
threaten to create a new tier of privilege, further disenfranchising those unable to afford such
interventions. Even more concerning are the ethical implications of bio-engineering:
interventions targeting "undesirable" traits raise the specter of discrimination and
marginalization of communities holding different perspectives on disability or human
enhancement.186
184
Milind D.P. and Prashanth K., BIOHACKING: Embedding Microchip Inside a Human Body, May 2021 JETIR,
Volume 8, Issue 5.
185
Press release, Biohacking Market Poised to Attain USD 83 Billion by 2032 | North America Hold - Highest
Revenue Share of 39%, September, 2023, GlobeNewswire <https://www.globenewswire.com/news-
release/2023/09/13/2742596/0/en/Biohacking-Market-Poised-to-Attain-USD-83-Billion-by-2032-North-
America-Hold-Highest-Revenue-Share-of-39.html>accessed on 15th May 2023.
186
Berman J, “CVS To Penalize Workers Who Don't Disclose Weight, Body Fat”, (huffpost, March 2013),
<https://www.huffingtonpost.co.uk/entry/cvs-workers-insurance_n_2915006> accessed on 15th May 2023.
|Page 63
To navigate these challenges and ensure that the fruits of biohacking and biological innovation
reach all corners of society, robust regulations and oversight mechanisms are essential. Strong
ethical frameworks guiding research and development must be established, coupled with
international collaboration to ensure equitable access and prevent exploitation. The ongoing
discourse about modifying human germline traits necessitates careful consideration of potential
unintended consequences and societal implications.
Occupational Requirements and Demands in Employment: Insights from India and Global
Perspectives
While the specter of mandatory biohacking or microchipping hasn't officially materialized in
Indian workplaces, a subtler form of pressure is taking root. We are witnessing the emergence
of practices that, though not explicitly compulsory, create an environment where adopting them
becomes advantageous, blurring the lines between voluntary participation and subtle coercion.
In the case of Wood v. Commissioner of Police for the Metropolis,187 the Court of Appeal in
England and Wales significantly expanded the understanding of privacy to encompass the
psychological integrity of an individual.
Uncovering unstated employee obligations

Gone are the days of overt mandates. In today's competitive climate, particularly in high-
pressure or performance-driven sectors, workplaces cultivate environments where specific
practices become almost expected. Employees, despite the absence of formal compulsion, feel
compelled to engage in practices like adhering to specific dietary restrictions or using
performance-enhancing supplements, potentially leading to nutritional imbalances and
unknown long-term consequences.
Sleep optimization techniques, mandated sleep schedules, or pressure to utilize sleep trackers
disrupt natural sleep patterns and exacerbate anxieties. Biofeedback-based performance
monitoring systems, while seemingly objective, raise concerns about privacy and the
psychological pressure they exert on employees, constantly scrutinizing their stress levels and
productivity. 188
Wood v. Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009).
187
188
Samuel E. Simpson, Comment: Microchipping Employees and Privacy Implications - Comment:
Microchipping Employees and Privacy Implications - Does My Boss Know Where I am Right Now? Does My
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The Indian military's reported use of Modafinil, a prescription medication promoting

wakefulness, for soldiers deployed in demanding situations serves as a cautionary tale.189 While
its use isn't officially mandated, its widespread adoption exemplifies the potential pitfalls of
non-mandatory biohacking. Touted for improved vigilance, the medication comes with
potential side effects like anxiety, insomnia, and addiction, raising concerns about long-term
health impacts and ethical considerations. This case underscores the urgent need for thorough
research and ethical frameworks to govern these emerging practices.
The long-term implications of non-mandatory biohacking extend far beyond the physical
realm. The subtle pressure to conform to workplace-influenced standards can have significant
mental and social repercussions. Fear of job insecurity or social ostracization might drive
employees to participate in potentially harmful practices, impacting their self-esteem and
autonomy. Additionally, fostering a culture of biohacking normalizes practices with unknown
long-term effects, creating anxiety and ethical dilemmas for employees who may question the
true purpose and consequences of participating.
Charting a responsible path forward requires a multifaceted approach. While outright bans may
not be the solution, developing nuanced regulations that address non-mandatory biohacking
and its potential for coercion is crucial. Organizations need to establish clear ethical guidelines
and transparency around performance expectations and acceptable practices, ensuring that any
biohacking-related initiatives prioritize employee well-being and informed consent.
Empowering employees through information about potential risks and fostering open
communication regarding concerns is equally important. Furthermore, investing in
independent research on the long-term effects of various biohacking practices is essential to
inform decision-making and safeguard employee well-being.
India hasn't yet implemented official mandates for biohacking, the emergence of subtle
pressures and ambiguous boundaries demands proactive responses. Recognizing the potential
Boss Know Where I am Right Now?, 2019, Marquette Benefits and Social Welfare Law Review: Vol. 20: Iss. 2,
Article 7 <https://scholarship.law.marquette.edu/benefits/vol20/iss2/7/>accessed 20May, 2023.
189
"Indian Air Force Pilots Popping Pills To 'Heighten Alertness'", DAWN (8 February 2016).
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long-term health, mental, and social impacts on employees, it's imperative to navigate this
evolving landscape responsibly.
Examining the Legal Landscape of Biohacking in the Indian Workplace

While the technology remains in its early stages, the potential consequences of biohacking,
ranging from health risks to data privacy breaches and coercion, necessitate a closer
examination of the existing legal framework to protect employee rights.
The Indian Constitution provides the bedrock of legal defence. Article 39(e) guarantees equal
access to justice, empowering employees to challenge unfair biohacking practices through the
legal system. Article 21, safeguarding the right to life and personal liberty, 190 potentially
encompasses bodily autonomy and control over decisions regarding biohacking. Additionally,
Article 43 upholds the right to work in healthy conditions, potentially applicable to ensuring
safety standards in any biohacking practices implemented at work.
Data privacy and security concerns surrounding biohacking are addressed by the Information
Technology Act.191 Section 43A holds companies liable for data breaches of "sensitive personal
data" like health information collected through biohacking. The Information Technology
(Reasonable Security Practices and Procedures and Sensitive Personal Data or Information)
Rules, 2011, mandate robust security practices for data handling, applicable to biohacking-
related data. Sections 66E and 72 of the Act can also be interpreted to protect employees from
data breaches and misuse of information obtained through biohacking.
Beyond these general provisions, several specific measures offer additional protection. The
Indian Penal Code,192 can be invoked if biohacking leads to bodily harm or coercion (Section
44). The Employment Equity Act 193 prohibits discrimination based on various factors,
potentially applicable if biohacking practices create discriminatory situations. Moreover, the
Employee's Compensation Act provides compensation to employees if biohacking at work
leads to occupational injuries or diseases. 194
190
Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.
191
The Information Technology Act, 2000 (21 of 2000), 2000 s 43A.
192
The Indian Penal Code (45 of 1860), 1860..
193
The Employment Equity Act (S.C. 1995, c. 44)., 1995
194
The Employee's Compensation Act, 1923 (8 of 1923), 1923.
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The recently drafted Digital Personal Data Protection Act, further 195 strengthens the legal
framework. Its core principles of consent and purpose limitation can shape how biohacking
data is collected and used in the workplace. Additionally, Section 3 of the HIV AIDS Act,196
specifically prohibits mandatory HIV testing, potentially setting a precedent for other
biohacking practices that could be deemed coercive.
The landmark case of Maneka Gandhi v. Union of India,197 established a broad interpretation
of privacy, encompassing psychological integrity. This precedent suggests potential legal
grounds to safeguard individuals from involuntary neuro-interventions, even in the absence of
criminal charges. Additionally, S. Rangarajan v. P. Jagjivan Ram198 explored the freedom of
thought under Article 19(1)(a), raising questions about potential limitations arising from
neurotechnologies that directly impact cognitive processes. While these cases do not directly
address neurotechnology, they offer crucial foundational principles for future legal discourse.
Despite these existing legal remedies, challenges remain. The novelty of biohacking might
necessitate interpreting and adapting existing laws to effectively address these emerging
practices. The burden of proof might lie with employees to demonstrate harm or discrimination
related to biohacking. Furthermore, the lack of specific regulations addressing biohacking in
the workplace underscores the need for further legislative developments.
Upholding individual rights, data privacy, and ethical considerations through existing and
evolving legal frameworks is crucial to ensure a safe and responsible environment for
biohacking in the Indian workplace. By proactively addressing these challenges, we can foster
responsible innovation that harnesses the potential of biohacking for good while safeguarding
the well-being of employees and society as a whole.
195
The Digital Personal Data Protection Act, 2023 (22 of 2023), 2023.
196
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control)
Act, 2017 (16 of 2017).
197
Maneka Gandhi v Union of IndiaAIR 1978 SC 597.
198
S. Rangarajan v P. Jagjivan RamAIR 1989 SCR (2) 204.
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India’s International Obligations

Biohacking practices can potentially undermine core employee rights enshrined in international
treaties. The International Labour Organization's (ILO) Convention No. 161, guaranteeing just
and favorable working conditions, could be violated by: mandatory biohacking creating undue
pressure, health risks associated with implants jeopardizing "favorable" conditions, and unfair
discrimination against individuals opting out. Microchip implants and data collection raise
concerns about privacy and data protection enshrined in the International Covenant on Civil
and Political Rights (ICCPR): data breaches exposing sensitive information, potential misuse
by actors, and lack of transparency regarding data usage potentially constituting privacy
violations.
Fortunately, these treaties also offer safeguards. The ILO Convention No. 161 prohibits
pressure related to biohacking, upholding just working conditions. The ICCPR demands robust
data protection for information collected through biohacking. Additionally, the ILO
Declaration on Fundamental Principles and Rights at Work199 empowers employees by
guaranteeing freedom of association and collective bargaining, enabling them to resist undue
pressure to bio-hack.
Responsible implementation necessitates a multi-pronged approach. Developing

comprehensive regulations addressing data privacy, security standards, informed consent, and
non-discrimination is crucial. Open dialogue and stakeholder engagement among
policymakers, employers, employees, and biohacking communities are essential for creating
ethical guidelines and addressing concerns. Prioritizing human rights, dignity, and individual
autonomy as guiding principles ensures initiatives serve society's best interests without
compromising employee well-being.
Pushing the boundaries through Constitutional reliance
Privacy Under Scrutiny

At the heart of the biohacking debate lies the fundamental right to privacy, enshrined in
landmark judgments like Justice K.S. Puttaswamy v. Union of India.200 Imagine a scenario
199
ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up adopted by the International
Labour Conference, Eighty-sixth Session, Geneva, 18 June 1998 (Annex revised 15 June 2010).
200
Justice K.S. Puttaswamy (Retd.) v Union of IndiaAIR 2017 (10) SCC 1.
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where employees are offered nootropics to boost focus, but the drug requires continuous
physiological data collection. Does implicit or explicit consent in such situations truly adhere
to the principles of informed decision-making? The case of Independent Thought v. Union of
India,201emphasizing the right to dignity and bodily autonomy, further complicates the matter.
If mandatory biohacking becomes a norm in certain workplaces, how can individual autonomy
and freedom from coercion be guaranteed?
Furthermore, legal precedents like Selvi v. State of Karnataka,202 outlawing involuntary narco-
analysis, establish the bedrock of informed consent in biohacking practices. This consent must
be voluntary, specific, and based on comprehensive information about potential risks and
benefits. The mere absence of coercion is not enough; transparency and understanding are
paramount. Similarly, the judgment in State of Bombay v. Kathi Kalu Oghad and Ors.203 warns
against the involuntary use of neuroscientific techniques, underlining the potential violation of
the right against self-incrimination (Article 20(3)) if biohacking data is used incriminatingly.
The gaps in India’s Labour Legislations

Vishaka v. State of Rajasthan,204 recognized the right to a safe and healthy workplace as part
of the fundamental right to life under Article 21. However, India's legal framework lacks a
unified approach to biohacking in the workplace. The Factories Act, 1948, Mines Act, 1952,
and Dock Workers (Regulation of Employment) Act, 1948 each focus on safety standards
within specific sectors, failing to capture the broader spectrum of biohacking interventions.
The Information Technology Act, 2000, offers some data privacy safeguards, but its
applicability to biohacking-generated data remains untested.
The Employees' Compensation Act, 1923, offers compensation for occupational injuries,
including those arising from "accidents." However, the Act's definition of "accident" focuses
primarily on physical injuries related to the immediate work environment. This narrow
interpretation may not encompass potential harms or long-term health consequences stemming
from biohacking interventions, thereby leaving employees inadequately protected.
201
Independent Thought v Union of India AIR 2017 (10) SCC 800.
202
Selvi v State of Karnataka AIR 2010 (7) SCC 163.
203
State of Bombay v Kathi Kalu Oghad AIR 1961 (3) SCR 10.
204
Vishaka v State of Rajasthan AIR 997 6 SCC 241.
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Discrimination's New Frontiers:

Existing labour laws in India, such as those outlined in the Shops and Establishments Acts,
primarily focus on ensuring a healthy working environment and offer limited grounds for
discrimination. However, the introduction of biohacking practices has the potential to create
new avenues for discrimination based on perceived cognitive abilities or health risks associated
with specific biohacking choices. Imagine a scenario where employees who choose not to
participate in biohacking are subtly ostracized or denied promotions due to perceived
limitations. Such scenarios highlight the inadequacy of current legal frameworks in
safeguarding against discrimination based on emerging technologies like biohacking.
Furthermore, the Employees' Compensation Act, with its limited definition of occupational
diseases, poses another challenge. If mandatory biohacking becomes prevalent and unforeseen
long-term health consequences arise, the current legal framework may not adequately
compensate affected employees. For instance, suppose a mandatory neurofeedback system
triggers unforeseen neurological issues in an employee. Will the current act recognize this as
an occupational disease eligible for compensation? The answer, unfortunately, remains
unclear.
The Imperative for Reform

The aforementioned legal complexities and limitations within existing legislation underscore
the urgent need for legislative reforms to address the unique challenges posed by biohacking
in the Indian workplace. This proactive approach must prioritize:
 Clear definitions: Establishing clear legal definitions of acceptable and unacceptable

biohacking practices within the boundaries of individual privacy and bodily autonomy is
crucial. This will provide both employers and employees with a clear understanding of
permissible practices and their associated rights and responsibilities.
 Robust consent procedures: Implementing robust informed consent procedures is essential

to ensure that employees fully comprehend the potential risks and benefits of any biohacking
technique. This consent should be voluntary, specific, and based on comprehensive
information provided in a language easily understood by the employee.
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 Expanded discrimination grounds: Amending labour laws to explicitly prohibit

discrimination based on biohacking choices or perceived capabilities is necessary to prevent
the emergence of new discriminatory practices. This requires a detailed enumeration of
protected characteristics encompassing biohacking choices and related data.
 Broadened occupational disease definition: Expanding the definition of occupational

diseases in the Employees' Compensation Act to encompass potential health risks arising from
workplace biohacking is crucial. This will ensure that employees affected by unforeseen
health consequences due to mandatory or voluntary biohacking receive adequate
compensation.
 Dedicated regulatory body: Considering the establishment of a dedicated regulatory body

specifically tasked with overseeing and monitoring the ethical implementation of biohacking
practices in the workplace is crucial. This body would be responsible for developing
guidelines, ensuring compliance, and addressing emerging challenges posed by the evolving
nature of biohacking technologies.
Collaboration and Continuous Evolution

Beyond specific legislative reforms, fostering a culture of collaboration and continuous
evolution is essential to navigate the complex landscape of biohacking in the Indian workplace
responsibly. This collaborative approach should involve:
 Open Dialogue and Stakeholder Engagement: Establishing open dialogue with diverse
stakeholders, including employers, employees, legal experts, ethicists, and policymakers, is
crucial to develop comprehensive and inclusive regulations. These dialogues should address
concerns, identify emerging challenges, and explore potential solutions collaboratively.
 International Benchmarking and Adaptation: Examining and adapting successful

international regulatory models for biohacking can provide valuable insights and accelerate
India's journey towards robust legal frameworks. However, it is critical to remember that these
models need to be adapted to the specific socio-cultural and legal context of India.
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 Regular Review and Update: Biohacking technologies and practices are constantly
evolving, necessitating regular review and update of regulations. This ensures that legal
frameworks remain relevant and address the latest challenges posed by advancements in the
field.
 Investing in Research and Education: To foster informed decision-making and ethical

implementation of biohacking, investing in research on the long-term health and societal
impacts of these practices is crucial. Additionally, educating employers, employees, and the
public about biohacking, its potential benefits and risks, and ethical considerations is essential
to promote responsible engagement with this technology.
 Promoting Ethical Guidelines and Best Practices: Industry associations, professional

bodies, and technology developers can play a pivotal role in establishing and promoting
ethical guidelines and best practices for biohacking in the workplace. These guidelines should
address informed consent, data privacy, non-discrimination, and transparency, among other
crucial aspects.
A Global Discourse and the call for action

While the allure of neurotechnology shines bright, several countries have begun to
acknowledge the potential for coercion and abuse of power within the workplace. California's
Civil Code205 Section 52.7 explicitly stands as a bulwark, stating, "An employer shall not
require an employee, as a condition of employment, to submit to the implantation of a
microchip or radio frequency identification device (RFID) under the employee's skin." 206 This
legislation, alongside Indiana's similar prohibition of mandatory microchipping, serves as a
testament to the importance of establishing clear legal boundaries to shield individual
autonomy and prevent undue pressure. These early steps showcase the evolving legal landscape
and illustrate the proactive measures needed to navigate the neuro-frontier responsibly.
 Lessons from the Past: The experience with genetic discrimination offers valuable insights
when shaping neurotechnology regulations. The Genetic Information Non-discrimination Act
The Civil Code California, 1872.

205
206
Khan, M. Ayoub,Sharma M, and Prabhu B.R., 'A survey of RFID tags' (2009) 1(4) International Journal of
Recent Trends in Engineering<https://www.semanticscholar.org/paper/A-Survey-of-RFID-Tags-Khan-
Sharma/13bb7d2238c674c7265e6a4f645e1d3a5b236b08.>
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(GINA) in the United States stands as a beacon of progress, prohibiting employment

discrimination based on genetic information. 207 GINA can serve as a crucial springboard for
crafting legislation specific to neurotechnology. Its emphasis on confidentiality, protection
from discrimination, and responsible data handling practices provides a robust foundation
upon which a neurotechnology-specific framework can be built. However, it is crucial to
acknowledge the unique challenges posed by neurotechnology.
 Beyond the Genome: GINA provides a valuable starting point, the complexities of
neurotechnology present distinct challenges. Unlike genetics, which primarily reveals
potential future health risks, neurotechnology delves deeper, offering insights into present
brain states and behaviors. This predictive power, while potentially beneficial, raises concerns
about its misuse and the potential for stigmatization based on neuro-based characteristics.
Existing discrimination laws, like Title VII of the Civil Rights Act in the United States,
primarily focus on categories like race or sex. These frameworks might not adequately
address the nuances of neuro-based discrimination, leaving individuals vulnerable and
hindering innovation due to legal ambiguity.
 Towards a Solution: Crafting a Neuro-Specific Legal Framework To effectively address

the challenges posed by neurotechnology in the workplace, a new legal framework tailored
specifically to this emerging field is essential. This framework should encompass several key
elements:
i. Prohibition of Mandatory Neuroenhancement: Employees' autonomy and freedom

from coercion must be enshrined through legislation clearly prohibiting employers from
mandating the use of neuroenhancement technologies. This safeguard aligns with the
sentiment expressed by Senator Edward Kennedy when he called GINA "the first major
new civil rights bill of the new century," recognizing the crucial role of legal frameworks
in protecting individual rights in the evolving technological landscape.
ii. Protection from Neuro-Based Discrimination: Robust legal protections are needed to
shield individuals from discrimination based on their use or non-use of
207
Stephanie A. Kostiuk,“After GINA, NINA? Neuroscience-Based Discrimination in the Workplace”, , 65 Vand.
L. Rev. 933 (2012).
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neurotechnologies. This aligns with the spirit of Article 14 of the Indian Constitution,
guaranteeing equality before the law and prohibiting discrimination based on religion,
race, caste, or sex. Extending these protections to the realm of neurotechnology ensures
equal opportunities and prevents stigmatization based on neuro-specific characteristics.
iii. Confidentiality and Data Protection: The potential for misuse of neuroinformation
necessitates stringent regulations governing data collection, storage, access, and usage.
Drawing inspiration from the Information Technology Act, 2000, in India, these
regulations should ensure the confidentiality of neuroinformation, empowering
individuals with control over their data and minimizing the risk of privacy violations.
iv. Ethical Guidelines and Oversight: As Donald Kennedy, neurobiologist and once editor-
in-chief of Science, rightly pointed out, "a brainome" similar to a "genome" presents
novel ethical considerations. To ensure responsible innovation and public trust,
independent oversight bodies can play a critical role in establishing ethical guidelines for
the development and deployment of neurotechnologies in the workplace. These
guidelines should draw upon existing frameworks like the Human Genome Project's
ethical and legal principles, ensuring transparency, informed consent, and respect for
human dignity. 208
v. Navigating the Grey Areas: The complexities of the neuro-frontier are further
highlighted when considering specific scenarios. In military contexts, for instance,
performance-enhancing neurotechnologies might be seen as tools to ensure mission
success and safety. However, as Henry Greely, director of Stanford's Center for Law and
the Biosciences, rightly points out, "For similar reasons, namely the safety of the
individual in question and others who depend on that individual in dangerous situations,
one could imagine other occupations for which enhancement might be justifiably
required." Yet, concerns remain about informed consent, coercion, and potential long-
term effects. Robust ethical frameworks and independent oversight are crucial to ensure
that any exceptions to mandatory neuroenhancement bans are made with meticulous
208
Genetic Information Nondiscrimination Act of 2008 § 2, Pub. L. No. 110-233, 122 Stat. 881-83 (2008)
(discussing congressional findings); U.S. Dept of Energy Office of Science, 'Potential Benefits of Human Genome
Project Research', Human Genome Project Information
<http://www.ornl.gov/sci/techresources/Human_Genome/project/benefits.shtml> accessed 07 February 2024.
|Page 74
consideration, prioritizing individual autonomy, minimizing risks, and preventing

potential abuses.
vi. Beyond National Borders: Navigating the legal and ethical frontiers of neurotechnology
in the workplace necessitates a collective approach that transcends national boundaries.
Open dialogue, knowledge sharing, and collaboration among policymakers, academics,
neuroethicists, and civil society organizations across the globe are crucial to fostering
responsible innovation and developing harmonized legal frameworks. This collaborative
effort should draw upon existing international instruments like the Universal Declaration
of Human Rights, which emphasizes the right to privacy and freedom from
discrimination. By upholding these fundamental principles in the context of
neurotechnology, we can ensure that the benefits of this technology reach all corners of
the globe without infringing upon individual rights and human dignity.
As the integration of neurotechnology into the workplace unfolds, we stand at a pivotal

juncture. By proactively addressing the challenges posed by neurotechnology, we can harness
its potential to enhance human capabilities while safeguarding privacy, autonomy, and ethical
considerations.209
THE ROAD AHEAD

Worker Rights and Right to Privacy: Cornerstones of a Constitutional Mandate
India's Constitution, under Article 21, enshrines the fundamental right to life, encompassing
the inviolable right to privacy. This right extends to the workplace, empowering individuals
with control over their personal information and bodily integrity. Existing labour legislations
primarily address discrimination based on religion, caste, and gender. However, they lack
explicit provisions to address potential discrimination arising from neuro-based, genetic-based,
or health-related data potentially gathered through microchipping or biohacking in the
workplace. This legal vacuum necessitates a revaluation of current frameworks and the
potential inclusion of specific safeguards against biohacking-induced discrimination.
Morein-Zamir S, Sahakian BJ, “Pharmaceutical cognitive enhancement”, J Illes and BJ Sahakian (eds), Oxford
209
Handbook of Neuroethics (Oxford University Press, Oxford, 2011).
|Page 75
Expanding the Scope of Workplace Discrimination:

The current legal framework in India protects against discrimination based on specific
attributes like caste, religion, and gender. However, biohacking practices have the potential to
generate novel forms of discrimination based on:
Neurological Differences:Biohacking techniques impacting cognitive functions or neural

processes could disproportionately affect individuals with pre-existing neurological conditions,
creating discriminatory biases or limiting opportunities for promotion and career advancement.
Genetic Disparity: Biohacking techniques that rely on genetic information could exacerbate
existing social inequalities if access to such technologies is skewed based on socioeconomic
factors, amplifying pre-existing disparities in the employment landscape.
Health-Related Discrimination: Data gathered through biohacking might reveal underlying

health conditions, potentially leading to discrimination in aspects like promotion, job security,
or even insurance benefits, further compounding existing vulnerabilities and perpetuating
social inequalities within the workplace. 210
To address these emerging concerns, India needs to consider strengthening its legal framework
through several strategic interventions:
 Expanding the definition of "workplace discrimination" to explicitly include neuro-based,

genetic, and health-related factors. This broadened definition would ensure wider protection
for employees and safeguard against potential misuse of biohacking technologies.
 Enacting specific regulations around biohacking data collection, storage, and usage. These
regulations should mandate informed consent procedures, establish stringent data privacy
protocols, and ensure adherence to ethical principles in data utilization. Establishing
independent oversight mechanisms to investigate and address complaints of discrimination
related to biohacking practices. Such mechanisms would provideavenues for redressal and
ensure accountability for discriminatory practices arising from workplace biohacking.
210
Gatto A.P., “Under the Human Skin: Will Human Microchipping Prove to Be a Survivor in the Courtroom Just
as DNA Evidence Did?” (2016) 16 Journal of High Technology Law 409, 442.
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The Right to Privacy in the Biohacked Workplace: Safeguarding Individual Autonomy in a

Data-Driven Era
The right to privacy, integral to Article 21, extends to the workplace, granting individuals
control over their personal information and bodily integrity. However, the pervasiveness of
biohacking technologies raises novel privacy concerns:
 Data Collection and Surveillance: Biohacking techniques might generate continuous data
streams about an individual's health, performance, and even cognitive processes. This raises
concerns about potential employer surveillance, misuse of data for non-consensual purposes,
and unauthorized data sharing with third parties, which could have detrimental consequences
for individuals' privacy and well-being. 211
 Employer Access and Control: The question arises about the extent of employer access to
biohacking data collected within the workplace. Defining clear legal boundaries is crucial to
prevent employers from exerting undue control over employee bodies and personal
information, ensuring that the workplace remains a space of individual autonomy and not one
of intrusive monitoring and coercion. 212
To safeguard privacy in the biohacking workplace, India needs to implement comprehensive

measures:
 Robust data protection regulations: These regulations should specify permissible data
collection practices, require informed consent, and ensure stringent data security measures to
protect sensitive personal information collected through biohacking technologies.
 Granting individuals the right to access and control their biohacking data: Empowering
individuals with control over their data allows them to restrict access, request deletion, and
choose who can share their data, fostering personal autonomy and data ownership in the
increasingly biohacked workplace.
211
Sengupta S, “The Enumerative Indian State, and the 'Ideal Cyborg'”, (WIRE, 15 Sept 2023).
212
Tocchetti S, “How did DNA become hackable and biology personal? Tracing the self-fashioning of the DIYbio
network”, (The London School of Economics and Political Science, October 2014)
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 Establishing independent data protection authorities: These independent bodies would

monitor compliance with data protection regulations, investigate potential privacy violations
related to biohacking practices, and provide recourse for individuals whose privacy rights
have been infringed upon.
Building a Neuro Rights Framework for India: A Roadmap for Navigating Uncertain
Terrain
The ethical and legal lacunae regarding neuro rights and biohacking necessitate a dedicated
legal framework in India. This framework should address crucial aspects like:
 Defining the Scope of Neuro Rights: A comprehensive definition encompassing cognitive

autonomy, brain integrity, and protection from unauthorized neurological interventions is
essential. This necessitates meticulous delineation of the boundaries of permissible and
prohibited interventions, ensuring the sanctity of individuals' neurocognitive makeup. 213
 Informed Consent for Neurohacking: Specific guidelines for informed consent in the
context of brain-altering biohacking techniques are imperative. These guidelines should
emphasize transparency, comprehensive risk disclosure, and the ability to freely withdraw
consent without repercussions. Implementing rigorous informed consent procedures ensures
individuals make autonomous choices while being fully aware of the potential consequences
of biohacking interventions.214
 Independent Oversight and Regulatory Bodies: Establishing independent ethical review

boards and regulatory bodies with expertise in neuroscience and bioethics is crucial. These
bodies will be responsible for reviewing proposed biohacking interventions, meticulously
assessing their potential risks and benefits, and ensuring adherence to established ethical
principles. This independent oversight mechanism is vital for safeguarding individual neuro
rights and fostering responsible biohacking practices.
213
Sinchana M.R.,Sanjanaa R.S, “Right to cognitive liberty in a Transhumanism Era: A Case for Integration within
Indian Legal Framework”, 29 June 2023, First Edition, NUALS Law Review, Volume XVII
<https://nualslawjournal.com/2023/06/29/right-to-cognitive-liberty-in-a-transhumanism-era-a-case-for-
integration-within-indian-legal-framework/> accessed on 15 May 2024.
214
Altug Ozgun, Burcu Seven, “A new kind of Human Rights: Are We Aware of Neurorights”.
|Page 78
Balancing Constitutional Guarantees and Technology's Advancements: A Delicate

Negotiation
The Indian Constitution mandates a "healthy working environment" encompassing physical
and mental well-being. This raises critical questions about employer responsibilities towards
employees engaging in biohacking, requiring a careful negotiation between individual choices
and organizational obligations.
Employer Liability and Duty of Care: Striking a Balance between Autonomy and
Responsibility
Should employers bear any liability for potential health risks or unintended consequences
arising from employee-initiated biohacking? Can employers restrict biohacking practices
within their premises to ensure a healthy and safe work environment for all? Navigating these
dilemmas requires a nuanced approach:
 Employer Liability: Establishing clear guidelines for employer liability in the context of
biohacking is crucial. This can involve mandatory risk assessments and informed consent
procedures before employee-initiated biohacking, along with clear communication regarding
potential risks and responsibilities.215 This ensures transparency and accountability while
minimizing the burden on employers for unforeseen consequences of individual choices.
 Restriction of Biohacking Practices: Balancing individual autonomy with employer

responsibility is essential. Employers might have legitimate concerns about workplace safety
and productivity in a biohacking environment. However, any restrictions on biohacking
practices must be transparent, justified, and proportionate, upholding employee autonomy
and avoiding discriminatory practices. This necessitates open dialogue and collaborative
decision-making between employers and employees to define acceptable boundaries within
the workplace.
215
Margaux Venet, “Business Potential of Biohacking at Work” Studying the Degree to which Employees would
Adopt Biohacking within their Working Context, Bachelor’s thesis (May 2020, School of Business) Degree
Programme in Business Administration.
|Page 79
Constitutional Considerations and Evolving Interpretations: Adapting to a Transforming

Landscape
The right to life and the right to a healthy working environment enshrined in the Constitution
need to be considered in light of biohacking advancements. This necessitates dynamic
interpretations and evolving legal frameworks:
 Balancing Rights and Regulations: Striking a balance between individual rights to biohack
and the need for regulations is crucial. Frameworks should promote responsible biohacking
while safeguarding individual autonomy and ensuring a healthy working environment for all.
This implies finding a middle ground that protects individuals from exploitation while
fostering legitimate biohacking practices that comply with ethical and safety standards.
 Evolving Interpretations: The courts in India have a history of evolving interpretations of

fundamental rights to adapt to societal changes and technological advancements. Similarly,
interpretations of the right to life and the right to a healthy working environment might need
to evolve to address the complexities arising from biohacking practices. This continuous
adaptation ensures legal frameworks remain relevant and responsive to the dynamic nature of
technological advancements.
Judicial recommendations
The Justice AP Shah Committee outlined nine key principles.216 These principles emphasize
transparency through notice and informed consent, data minimization (collection and purpose
limitation), individual control (access, correction, and disclosure), security, and accountability.
ETHICAL FRAMEWORKS AND RESEARCH: GUIDING PRINCIPLES FOR RESPONSIBLE

ADVANCEMENT
 Developing Ethical Frameworks: Adapting existing ethical frameworks like the Belmont
Report to the specific context of biohacking in the workplace is crucial. These frameworks
can guide individuals, organizations, and researchers in making ethically sound decisions,
216
Planning Commission, Government of India, Report of the Justice AP Shah Committee, 21-27 (16 Oct 2012).
|Page 80
 Ethical Frameworks and Research: Guiding Principles for Responsible Advancement.
 Promoting Responsible Research and Development: Encouraging responsible research

and development practices in biohacking is essential. This includes:
 Rigorous pre-clinical and clinical testing: Ensuring thorough investigations of potential

risks and benefits before biohacking interventions reach the workplace.
 Transparency in research protocols: Making research transparent and accessible to the

public allows for scrutiny and feedback, essential for building trust and fostering responsible
development.
 Public engagement in decision-making processes: Engaging the public in discussions about

biohacking research and its potential implications empowers communities and ensures their
voices are heard in shaping the future of this technology.
LEGAL REFORM AND REGULATORY EVOLUTION: BUILDING STRONG FOUNDATIONS FOR
THE FUTURE
Existing labour legislations of India need to be comprehensively reviewed and amended to

explicitly address biohacking and its potential implications for worker rights, privacy, and non-
discrimination. This might involve:
 Expanding the definition of workplace discrimination to encompass neuro-based, genetic, and

health-related factors arising from biohacking.
 Enacting specific regulations around biohacking data collection, storage, and usage, ensuring
informed consent, data security, and individual control over personal information.
 Establishing independent oversight mechanisms to investigate potential violations and ensure

adherence to ethical and legal principles.
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In order to guarantee the safe and secure use of scientific methods and to stop the unethical and
illegal use of biological resources, the accredited scientific community should actively
collaborate with the biohacking community. 217
The newly established Equal Opportunity Commission (EOC) 218 signifies a deliberate shift in
the national anti-discrimination framework. To navigate potential duplication of existing
commissions is crucial, the EOC represents a commitment to tackling emerging challenges and
evolving forms of discrimination. Its holistic approach, responsiveness to social change, and
potential for strengthened enforcement mark it as a symbol of progress in the fight for a more
just and equitable society.
CONCLUSION
A Call for Proactive Engagement and a Vision for a Responsible Future Biohacking in the
Indian workplace presents a complex tapestry of opportunities and challenges. By adopting a
proactive and nuanced approach, India can harness the potential benefits of biohacking while
safeguarding individual autonomy, privacy, and workplace well-being. This necessitates
fostering open dialogue, building collaborative partnerships, and developing robust ethical and
legal frameworks. Through continuous engagement, responsible research, and evolving legal
systems, India can navigate the uncharted waters of biohacking, ensuring it empowers
individuals and organizations without compromising fundamental rights and ethical principles.
By embracing a future shaped by responsible innovation and collaborative foresight, India can
pave the way for a workplace environment where biohacking serves as a tool for individual
and collective well-being, fostering progress and inclusivity within the evolving technological
landscape.
217
Devi M.G, “Epidemiology of neurological disorders in India: review of background, prevalence and incidence
of epilepsy, stroke, Parkinson's disease and tremors”, November-December 2014 / Vol 62 / Issue 6pg 588-
98<https://www.researchgate.net/publication/270907569_Epidemiology_of_neurological_disorders_
in_India_Review_of_background_prevalence_and_incidence_of_epilepsy_stroke_Parkinson's_disease_and_tre
mors> accessed 20 May, 2023.
218
Equal Opportunity Commission, Report by the expert group to examine and determine the structure and
function Opportunity Commission set up by the Ministry of minority affairs, Government of India, 2008 February
<https://www.minorityaffairs.gov.in/WriteReadData/RTF1984/1658385481.pdf.> accessed 20 May, 2023.
|Page 82
TRACING THE LEGAL ODYSSEY OF PRIVACY LAWS, WORKPLACE

SURVEILLANCE, AND THE URGENT NEED FOR PROGRESSIVE LABOUR
LEGISLATION TO PROTECT EMPLOYEE PRIVACY IN INDIA
*MANAVI SINHA AND VINEET PRIYADARSHI
ABSTRACT
The article emphasizes that there is no legislation in India under the labour and employment
law specifically addressing the issue of employee monitoring. An increasing power imbalance
exists between employers and employees due to the unregulated gathering of sensitive data and
behavior monitoring. While employers may employ surveillance to minimize legal risks,
increase productivity, ensure a safe workplace, and protect against potential security threats,
such interests do not justify the invasion of employee privacy that monitoring and surveillance
entail. This practice raises a significant ethical issue as there are adverse psychological effects
of a surveillance work environment, such as high levels of stress, identity theft, and the
potential violation of privacy. The article also explores the broader social consequences of
privacy breaches and examines specific concerns related to genetic testing, medical data, and
workplace technology like RFID. In numerous landmark decisions, the Supreme Court has
established the ‘right to privacy’ as a fundamental right. The article will analyze the
development of the ‘right to privacy’ and related rights, following its legal journey from early
Supreme Court rulings to significant judgments regarding employee surveillance in the
workplace. The employees’ privacy rights are currently protected under the IT Act, 2000, SPDI
Rules, 2011, and the DPDP Act, 2023. The DPDP Act of 2023 and other related state laws
have created a complex legal framework around the issue of employee data privacy. The article
highlights the shortcomings of the DPDP Act, which include, in particular, the lack of clear
guidance on employee consent, and the definition of open consent allows employers to take
advantage of this approach when hiring new employees. The article places reliance on foreign
decisions, legislations from America and Germany, which are civil and common law countries,
which serve as evidence for the importance of consent in employee surveillance and enshrining
safeguards against illegal data acquisition in law. Moreover, collective bargaining is
demonstrated as a significant factor that shapes workplace policies and ensures job protections
and, therefore, demands clear, transparent, and consensual e-monitoring practices. Therefore,
the article aims to analyze the deficiencies in current privacy legislation pertaining to
protecting employees’ privacy, examine foreign judgments in this regard, and propose the
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enactment of comprehensive legislation concerning employee surveillance within the realm of

labour law.
KEYWORDS: EMPLOYEE MONITORING, RIGHT TO PRIVACY, FREE CONSENT, COLLECTIVE

BARGAINING, TRANSPARENT MONITORING PRACTICES
INTRODUCTION
Employee privacy is fundamental to employment law regulating complex dynamics between
companies and their employees. With the growing dependence on surveillance and data
monitoring in modern workplaces, there is a greater need to find a careful equilibrium between
legitimate corporate concerns and individual privacy rights. The recent legal rulings,
particularly after the Puttaswamy case, have definitively confirmed the constitutional
safeguarding of privacy, highlighting its crucial role in fostering a favorable and peaceful work
atmosphere.219
India faces numerous issues regarding employee privacy despite having statutory
frameworks.220 A vital obstacle arises from the lack of explicit criteria defining the parameters
of legitimate use221of employee data for corporate objectives, creating the possibility for
exploitation and privacy violations. 222 Moreover, the presence of consent fatigue and the
absence of comprehensive rules specifically designed to meet the varying needs of different
industries highlight the complex nature of the privacy discussion in the workplace.
Due to the varying data needs in different industries, legislation should be passed under the
purview of labour law to acknowledge and expressly protect employees’ dignity and privacy
rights. This legislation would not only define the specific obligations of employers but also
guarantee that the protection of privacy remains a central focus in the policies and practices of
organizations. Furthermore, collective bargaining presents a promising method by which
219
A Preethi &Nithin Satheesh, ‘Need for a Comprehensive Legislation on Employee's Privacy in India:
Comparison with U.S. and EU Models’ [2021] 4 Int'l JL Mgmt& Human 1449
<https://heinonline.org/HOL/hein.journals/ijlmhs.com> accessed 05 February 2024.
220
Information Technology Act, 2000 (21 of 2000); Digital Personal Data Protection Act, 2023 (22 of 2023).
221
Information Technology Act, 2000 (21 of 2000) s. 7(i).
222
Aditya Bashambu& Lavanya Chetwani, ‘Critical Analysis: Digital Personal Data Protection Bill 2022’ [2022]
3 Jus Corpus LJ 519 <https://www.google.com/Adiyta-Bashambu-and-Lavanya-Chetwani.pdf&ved> accessed 05
February 2024.
|Page 84
employees can assert their privacy rights, facilitating open discussion and negotiation between
labour and management to tackle relevant privacy issues.
By matching its current monitoring regulations with international standards, India may
strengthen its dedication to protecting employees’ privacy rights while fostering a favorable
and fair work atmosphere. Effective enforcement procedures and severe punishments for
privacy breaches are crucial aspects of this effort, emphasizing the requirement for proactive
actions to protect employee privacy in a time of rapid technological progress and changing
workplace dynamics.
HOW EMPLOYEE MONITORING SATISFIES EMPLOYER INTERESTS
Employers have legitimate reasons to monitor employee conduct, as it serves several functions,
including increasing security standards, promoting efficiency, lowering legal obligations,
establishing a safe work environment, and safeguarding against potential threats. In the face of
media coverage of corporate scandals, organizations aim to minimize damage to their
reputation and enforce steps to thwart corporate espionage. 223
Organizations also emphasize the importance of presenting clear arguments for firing
employees based on their behavior, protecting business resources, and enhancing productivity.
Monitoring can help reveal underlying causes for disciplinary warnings or employee
terminations, Organizations may collect personal data from employees for recruitment
purposes, such as names, addresses, and educational qualifications. They may also manage
personal information for salaries, promotions, disciplinary issues, and attendance records.
Employers use monitoring measures to optimize financial profits, ensure proper resource
utilization, avoid liability for employee activities, and address concerns like copyright
violation, sexual misconduct, and hostile work atmospheres. They also monitor employees’
online use to tackle issues like copyright violation, sexual misconduct, and inappropriate
communication.224
223
Bodepudi, A. & Reddy M., ‘The Rise of Virtual Employee Monitoring in Cloud and Its Impact on Hybrid Work
Choice” [2021] 5(1) Journal of Artificial Intelligence and Machine Learning in Management, 25-50
<https://journals.sagescience.org/index.php/jamm/article/view/74>accessed 06 February 2024.
224
K. Ball, ‘Workplace Surveillance: An Overview’ [2010] 51(1) Labor History
<https://www.google.com/Workplace_Surveillance_An_Overview&ved> accessed 06 February 2024.
|Page 85
Workplace safety is highly valued, and organizations actively address concerns about staff drug
use. Random substance testing is enforced to maintain a secure atmosphere, benefiting both
the organization and employees.225 Due to increasing insurance costs, some organizations are
closely monitoring their employees’ personal activities. Overall, employers use monitoring
measures to achieve specific objectives and maintain a safe work environment.
THE RISING TREND OF EXCESSIVE WORKPLACE SURVEILLANCE, MONITORING, AND

EMPLOYEE DATA COLLECTION
The internet has significantly impacted the increase of employee monitoring in recent years,
despite workplace monitoring being a historical practice since the early stages of
industrialization. Technological advancements have broadened the scope for monitoring, but
this excessive surveillance may lose focus on the original aim of safeguarding companies
against data theft and maintaining a secure work environment.226
Employers also provide communication services to their employees by providing advanced

technology and internet access. They gather comprehensive personal information from
employees, including email conversations and internet activity. Invasive methods such as
inquiring about personal matters, covertly installing surveillance cameras, and soliciting DNA
samples can raise concerns about discrimination in employment agreements and potential
social ostracism and psychological distress. 227
Radio Frequency Identification (RFID) technology has evolved to track and supervise
personnel in the workplace, with employers mandating the use of RFID chips for employees.
However, excessive monitoring can lead to a lack of regard for employee privacy. While it is
necessary for organizations to protect their interests while preserving employee privacy and
225
Dr. Vidushi Jaswal, ‘Psychological Effects of Workplace Surveillance on Employees, and the Legal Protection:
An Analysis’ [2017] Vol. 59, Jan. – March Bharati Law Review 64, 65
<https://docs.manupatra.in/newsline/articles/.pdf> accessed 03 February 2024.
226
Corey A. Ciocchetti, ‘The Eavesdropping Employer: A Twenty-First Century Framework for Employee
Monitoring’ [2011] 48(2) American Business Law Journal <https://papers.ssrn.com/sol3/papers.c> accessed 03
February 2024.
227
U. Hugl, ‘Workplace Surveillance: Examining Current Instruments, Limitations and Legal Background Issues’
[2013] 9(1) Tourism & Management Studies <https://www.tmstudies.net/index.php/ectms/article/view/547>
accessed 05 February 2024.
|Page 86
dignity, it is essential for both employers and employees to maintain a secure working
environment. Such excessive usage of monitoring to increase efficiency has a downside in a
sense that there is a lack of regard of the privacy of the employees.
Employers are now also utilizing genetic testing to monitor their employees. Identifying
genetic predispositions and determining reproductive carrier status can be highly advantageous
in promoting health and preventing diseases. However, employers having access to genomic
information can result in adverse outcomes, including economic, social, and psychological
distress.228
Nonetheless, it is indisputable that, for many reasons, it is necessary and even desirable to have
some level of monitoring and information gathering in order to protect one’s organization and
ensure a secure working environment. The employers have legitimate interests and as long as
these interests are looked after while simultaneously preserving the privacy and dignity of the
employee, it is for the benefit of both, the employers and the employees. 229
WHEN EXCESSIVE MONITORING IMPEDES PRIVACY OF THE EMPLOYEES
Employers have recently increased workplace surveillance using sophisticated methods such
as DNA fingerprinting, hidden cameras, and GPS devices. Nevertheless, by doing so, they have
demonstrated minimal regard for the repercussions this has on their workers. Due to fierce
competition in the corporate sphere, monitoring employees’ personal life has become a
widespread practice. This phenomenon arises as a result of the inherent power asymmetry
between the employer and the worker. The former continually asserts a position of superiority
when engaging in discussions with the employee. 230
There are four primary categories of privacy concerns in the workplace: “Intrusion,
appropriation, public disclosure of private facts and false light”. Intrusion entails purposeful
disruption of personal matters, whereas appropriation pertains to the utilization of someone
else’s name or likeness for the sake of financial benefit. Public revelation of facts refers to the
228
Psychological Effects (n 225).
229
Ibid
230
Ibid (n. 228).
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unauthorised revelation of personal information, whereas false light refers to the dissemination
of offensive and untrue information about a person.231
THE EFFECTS OF EXCESSIVE SURVEILLANCE ON EMPLOYEES
Unjustifiable and arbitrary workplace surveillance violates employees’ privacy rights, resulting
in emotions of oppression and suffocation. Personal autonomy and identity development rely
heavily on privacy, which includes both informational and decisional components. Perpetual
monitoring hinders the formation of significant connections and involvement in society,
thereby detrimentally affecting employee relationships.232 Perpetual monitoring engenders a
dehumanizing atmosphere, which detrimentally impacts both staff morale and productivity. 233
Establishing explicit limits is essential to protect the confidentiality of employees. Engaging in

unauthorized surveillance, such as intercepting personal devices, might result in legal
consequences and allegations of workplace harassment. As remote work becomes more
prevalent, employees’ residences are now considered part of the business, requiring strong
privacy safeguards.
Given that workplace bullying is a genuine issue, there have been cases where employers have
been accused of abetting suicide of their employees. 234 Employers having unrestricted access
to personal information about employees not only violates privacy but can also lead to
humiliation, bullying, or stigma, negatively impacting their quality of life.
Due to the changes in work culture following the Covid pandemic and the rise of remote work,
the concept of a workplace now must include an employee’s home. In such instances, the
boundaries of privacy become increasingly ambiguous. Albeit in a different context, in the
case of Professor Siras from Aligarh University, 235 his personal life within his own home was
231
Sha Cheich&Kliener, ‘Ethical Orientation: A Solution for Workplace Monitoring and Privacy Issues” [2003]
De Paul Institute of Science & Technology, Cochin’ India <https://www.google.com/nternational.org> accessed
07 February 2024.
232
Joseph Kupfer, ‘Privacy, Autonomy, and Self-Concept, American Philosophical Quarterly’ [1987] Vol. 24, No.
1 Jan Philosophical Quarterly<http://www.jstor.org/stable/20014176> accessed on 05 February 2024.
233
Ibid.
234
Parveen Pradhan v State of Uttaranchal [2012] (1) JT 478.
235
Dr Shrinivas Ramchandra Siras & Ors v The Aligarh Muslim University & Ors [2010] Allahabad HC Civil
Misc. Writ Petition No.17549 of 2010.
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used by the university as a reason to suspend him. He has been instructed to leave the staff
accommodation assigned to him due to alleged ‘misconduct’. The court acknowledged that
activities occurring within the boundaries of a residence are considered private and protected
by the right to privacy. Thus, there is a need to establish what can be monitored in such cases.
Another issue this case highlights pertains to the potential exploitation of employees’ sensitive
information by employers. It is imperative that such information be safeguarded at all times to
prevent any negative consequences for the employee.
ABSENCE OF LEGISLATION ON EMPLOYEE MONITORING IN INDIA

Employers236 wield significant power due to their handling of confidential employee 237
information and the lack of specific labour law legislation in India has created an ethical
quandary. The absence of a regulatory framework creates an environment where businesses
engage in questionable activities, such as the unrestricted collection of personal information.
This results in an inherent power imbalance between employers and employees, particularly
when behavioral monitoring is combined. The lack of strong regulation in India’s current legal
framework leads to businesses accessing employee data without proper access or consent,
exacerbating workplace privacy concerns. The critical component of open consent is not
adequately utilized by current SDPI rules, 238 which seek to protect employee data. As a result,
employment rules that specifically address employee evaluations should be enacted which
focuses on both employer and employee interests
Section 139 of the Social Security Act,239 which is ostensibly intended to regulate employees,
provides a narrow interpretation that fails to adequately address the various issues that
employees face regarding monitoring. Surprisingly, the Act 240 grants employers broad rights
to access more information about their employees, raising privacy and data security concerns.
This legislative failure raises concerns about data security, primarily by allowing employers to
obtain significant non-consented personal data.in landmark case of Union of India v. G.R.
236
The Industrial Relations Code, 2020 (35 of 2020), s 2(m).
237
The Industrial Relations Code 2020 (35 of 2020), s 2(I).
238
The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or
Information) Rules, 2011, G.S.R. 313(E).
239
The Code on Social Security Act, 2020 (36 of 2020) s 139.
240
Ibid.
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Rawal241the Director General of Income Tax (Inquiry) highlights violations of privacy and
need of labour laws that protect personal data in India.
In absence of a specific legislation on the subject under the purview of labour law, IT laws and
data protection laws,242 act as protectors of employee interests. However, the protection granted
therein is inadequate and insufficient to tackle the matter of employ monitoring, which requires
a rather nuanced approach.
The development of IT laws in relation to employee privacy protection

The enactment of the IT Act, 2000 initiated the establishment of data privacy and employee
privacy in India. Prior to this, there was no independent legislation particularly addressing data
privacy in the country. The IT Act of 2000 and the SPDI Rules of 2011 solely governed the
management of personal data and mandate that organizations adhere to appropriate security
standards and procedures while managing SPDI Rules. 243
Section 43-A of the IT Act imposes liability on corporations for their failure to adopt adequate
security measures. It highlights the significance of developing strong security protocols to
protect against unauthorized access or disclosure of sensitive personal information, including
that of employees. 244
The SPDI Rules, 2011,245 offer comprehensive instructions to organizations on handling and
safeguarding Sensitive data,246 specifically concerning personal data obtained from employees.
Employers are obligated to protect and ensure the security of data and privacy. The rules
include several provisions, such as the Privacy Policy Requirement, Consent Requirement,
241
Union of India v G.R. Rawal [2007] CIC/AT/A/2007/00490.
242
The Information Technology Act, 2000 (21 of 2000); The Information Technology (Reasonable Security
Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 G.S.R. 313(E); Digital Personal
Data Protection Act, 2023 (22 of 2023).
243
The Information Technology Act, 2000 (21 of 2000).
244
The Information Technology Act, 2000 (21 of 2000) s 43-A.
245
Information) Rules, 2011, G.S.R. 313(E).
246
Information) Rules, 2011, G.S.R. 313(E) r 1.
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Limitations on revealing or transferring sensitive personal data to third parties without prior
consent and Security Policies Obligation. 247
Despite these provisions, numerous obstacles persisted in the sphere of privacy which were not
addressed. As a result, the DPDP Act was enacted in August 2023.248
In the employee sphere, these challenges included the absence of specific legislation about
employee privacy, conflicting interpretations and boundaries of sensitive personal data in the
two acts, inadequate sanctions for privacy breaches, and varying levels of data protection based
on the sensitivity of the data.249
MOVING FORWARD-DOES THE DPDP ACT AS AN ADEQUATE SAVIOUR FOR THE
EMPLOYEES?250
India has enacted the DPDPA 2023 to improve data privacy security in India. The Act aims to
regulate the handling of individual data, recognizing the need for processing for authorized
purposes and protecting individuals’ data rights. 251
When seeking consent for personal data processing, the DPDPA emphasises specificity,
informed consent, and simple withdrawal. Data fiduciaries must give data principals
comprehensive privacy notices that describe the reason for data collection, the type of data
requested, the grievance redressal process, and the withdrawal process.
The Act aims to rectify the imbalance between data principals (employees) and data fiduciaries
(employers), ensuring data protection by obtaining consent. Data fiduciaries are tasked with
data precision, security protocols, breach alerts, and complaint systems. The Act shares
247
Information) Rules, 2011, G.S.R. 313(E) r 4-8.
248
The Digital Personal Data Protection Act 2023.
249
A. Preethi &Nithin Satheesh, “Need for a Comprehensive Legislation on Employee's Privacy in India:
Comparison with U.S. and EU Models” [2021]4 Int'l JL Mgmt& Human 1449
<https://heinonline.org/HOL/LandingPage?handle=hein.journals/ijlmhs10&div=127&id=&page=> accessed 07
February 2024.
250
The Digital Personal Data Protection Act, 2023 (22 of 2023).
251
The Digital Personal Data Protection Act, 2023 (22 of 2023)s 7(i).
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similarities with the European Union’s GDPR, 252 authorizing data fiduciaries to obtain
voluntary, clear, and knowledgeable accord from data leaders. 253
According to the legislation, individual data may only be processed for lawful purposes. This
can be accomplished through the data subject’s explicit and voluntary consent, which must be
unambiguous, specific, informed, unconditional, and given freely, or it can be justified if the
processing is for “certain legitimate uses”254 While the term in question does not possess a
precise definition, the Act provides details regarding alternative circumstances that may be
considered lawful, such as employment. The Act permits organizations to manage the personal
information of individuals in the context of employment without their prior consent for three
primary reasons:
1. For purposes associated with employment

2. To ensure the protection of the organization from potential harm or legal obligations as an
employer (e.g., trade secret protection or prevention of corporate espionage).
3. Provide services or benefits requested by employees in accord with section 7(i) of the act.
The Act and GDPR require privacy notices to be provided to data principals. The notices must
provide a detailed description of the requested personal data, its intended purpose, the process
for addressing grievances, and the procedure for withdrawing consent. They must be disclosed
before or when collecting individual data, irrespective of the legal basis for processing it. 255
Section 17 of the Act specifies the circumstances in which data fiduciaries may process data
principles’ personal information without their consent for justifiable reasons.
ADDRESSING THE AMBIGUITY WITHIN THE DPDP ACT

 Uncertainty as to the meaning of “Purposes of Employment” - There may be other
situations where a traditional employer-employee relationship does not exist. For example,
when processing data of non-executive directors or contract workers, accessing personal
252
The General Data Protection Regulation [2016] OJ L 119/1, 2016/679.
253
Rachit Bahl et al., ‘Indian Data Protection Law v. GDPR - A Comparison’ [AZB & Partners, 18 August 2023]
<https://azbpartners.com/bank/indian-data-protection-law-versus-gdpr-a-comparison/> accessed 06 February
2023.
254
Ibid (n.253).
255
K. Mukhijaa& S. Jaiswal, ‘Digital Personal Data Protection Act, 2023 in light of the European Union's GDPR’
[2023] 4.1 JCLJ 654 <https://heinonline.org/hein.journals> accessed 07 February 2024.
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devices of employees during corporate investigations, or transferring employee data to the

parent organization for workforce management. These scenarios would still be considered
legitimate use. It is necessary to observe the development of legal decisions regarding these
aspects. The Act is ambiguous on how “purposes of employment” are defined and whether
pre-employment activities are encompassed. From a labour perspective, the Act deviates from
the conventional understanding of an ‘employer-employee connection.’ It permits the
processing of individual data “for work reasons” which may include a wider range of
activities, as one of the acceptable excuses. Nevertheless, the Act does not clearly define the
word ‘for employment’ which results in significant scope for discussion, especially in
intricate and ambiguous situations. 256
 Unclear Guidelines on Legitimate Use -The lack of clear guidelines as to what constitutes
legitimate use and where consent need not even be obtained in some instances gives an
expansive room for there to be an open breach of privacy of employee data which could easily
be justified under the garb of using it for a business goal. 257
 Industry-specific Monitoring Needs Not taken into account-An employer’s specific
monitoring requirements and data collection needs depend on the nature of their work and the
industry in which they operate. Employee privacy rights in the workplace may be restricted
more than usual. For example, in the case National Treasury Employee case (1989),258 in
determining that mandatory drug testing for promotions to specific positions was mandated
by the Constitution, the Apex Court of the United States granted an exemption to personnel
applying for jobs that involve the management of classified information.
 The Skinner case259upheld the legality of the FRA’s requirement that workers involved in
rail accidents submit to mandatory blood and urine testing, on the grounds that it satisfied a
special need resulting from the government’s emphasis on railway safety. The Iacobucci
case260confirmed the legality of a regulation requiring staff of establishments serving alcohol
and permitting nude dance to be subjected to fingerprinting and photographed by the police
department.
256
Ibid (n.255).
257
I. Gupta & P. Naithani, ‘What is left of consent when it is deemed consent: A data protection experiment in
India’ [2023] 6(1) Journal of Data Protection & Privacy <https://www.ingentaconnect.com/content> accessed 06
February 2024.
258
Nat'l Treas Emp Union v Von Raab [1989] 489 U.S. 656.
259
Skinner v Railway Labor Executives’ Association [1989] 489 U.S. 602.
260
Nicholas A Iacobucci v City of Newport [1986] (6th Cir.) 785 F.2d 1354.
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 There is no universally applicable method for defining a breach of privacy across various
industries. Therefore, when formulating legislation about employee privacy, it is essential to
consider this aspect to avoid employees feeling exploited or humiliated at their workplace.
This has not been taken into account by the act.
 Potential Legal Ramifications for Employers-Moreover, from the other side of the coin,
the employers may face action for using personal data for legitimate business purposes but
may face action by the employees as there are no clear guidelines, ultimately leading to more
cases being tried.
 Free consent may be difficult to obtain under uneven power dynamics- According to the
Data Protection Act, permission is considered legitimate only if it meets specific criteria: it
must be freely given, based on enough information, unambiguous, precise, and able to be
revoked. According to this reasoning, employees rarely can freely provide, decline, or
withdraw consent because of the employer-employee relationship, the employee’s intrinsic
reliance on the employer, and the uneven power -dynamic between the two.
 Consent fatigue-Moreover, repeatedly requesting consent can impose an excessive burden
on the employer or result in the employee experiencing consent fatigue.261
What is the need of the hour is to statutorily recognize that employees have a right to privacy
under the confines of labour law, come up with innovative strategies to create a level playing
field for the employers and employees, where the employees feel safe enough that not giving
consent in a particular situation will not be detrimental to his status in the office. Moreover,
different industries have different requirements regarding what information can be collected
for legitimate use. These requirements should be explicitly given in such a manner so that there
is little scope for employers to breach privacy in the name of having a business goal. An
innovative mechanism apart from taking consent should be added to avoid consent fatigue.
Data needs to be protected more fiercely, and there must be safeguards in cases of leak of
personal information of the employee to the other employees and employers and prevention
from stigma.
TRACING THE GROWTH OF ‘RIGHT TO PRIVACY’ IN INDIA
261
I. Gupta (n 258).
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Privacy is the most basic right that is inherent to human existence, encompassing several facets
like individual boundaries, physical self-governance, safeguarding of information, and the
ability to make autonomous decisions, inseparable from their identity, and acknowledged from
birth. The concept of privacy is complex and encompasses various dimensions that evolve with
societal shifts despite its inherent nature.262
Article 21 of the Indian constitution263 has within its ambit the ‘right to privacy’ Legal rulings
and key court cases have influenced the concept of privacy, despite the fact that it is not
explicitly defined in the Constitution.264
The judiciary has a long history of deciding cases that have raised concerns about government
intrusion and surveillance, with a focus on protecting individual privacy. The Supreme Court’s
careful and methodical review of search and seizure warrants in the case of MP
Sharma265created a solid foundation for following privacy discussions. In the Kharak Singh
case, the Court considered the validity of nighttime domiciliary visits, recognizing the right to
privacy despite the fact that it is not constitutionally guaranteed.266
Over time, the judiciary has consistently ruled on reasonable cases involving a broad range of
human interactions, thereby expanding the scope of the right to privacy. A prostitute’s right to
privacy was upheld by the court in the Madhukar Narayan Mardikar case, emphasizing the
value of individual autonomy and choice.
In the PUCL v UOI267 decision, the Court recognized that the right to have private telephone
calls without interference at one’s home or place of work might be regarded as a fundamental
“right to privacy.” The statement argued that phone surveillance, unless permitted through a
legally acknowledged method, would violate Article 21.
262
Aanandita Aneja, ‘Tracing the development of the Right to Privacy in India’ [2023] 3.2 JCLJ 1350
<https://www-aanandita-aneja.pdf/> accessed 06 February 2024.
263
The Constitution of India, 1950 art 21.
264
Taneja, R & Kumar, ‘S. Towards A Robust Right to Privacy in India’ [2012] 8 SCC J-13.
265
M P Sharma v Satish Chandra [1954] SCR 1077.
266
Kharak Singh v State of U.P. AIR [1963] SC 1295.
267
People’s Union for Civil Liberties (PUCL) v Union of India [1997] 1 SCC 301.
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The Supreme Court’s evolving understanding of privacy is illustrated by its line of precedents,
which extends from Kharak Singh to PUCL. In Kharak Singh Court defined physical privacy
as the right to an individual’s person free of hindrance or interference. The aforementioned
premise was expanded upon in the Rajagopal case, 268 which entailed the release of serial killer
memoirs. The court in PUCL Court broadened the definition of privacy to include personal
conversation. 269
In 2017, the Supreme Court rendered a pivotal decision in The Puttaswamy case, which
predominantly concerned itself with the constitutionality of the biometric identification
programme under Aadhaar. The Court reaffirmed its prior decision in 2018, which emphasized
that the Aadhaar initiative must not infringe upon the privacy rights of individuals.
The aforementioned 2017 decision underscored the importance of privacy, encompassing

intimate matters such as family life, sexual orientation, marriage, procreation, and the home.
In addition, the ruling has established three-pronged tests of legality, necessity and
proportionality. In order to possess legal validity, a restriction on privacy must satisfy these
particular tests and be reasonable.
The constant evolution of the Indian right to privacy demonstrates the judiciary’s commitment
to defending fundamental rights in the face of societal changes and technological
advancements. The judiciary has consistently upheld the importance of privacy in safeguarding
human dignity, freedom, and personal autonomy. This achievement has been accomplished
through significant legal rulings and careful interpretations.
EMPLOYEE MONITORING AND PRIVACY IN INDIAN LEGAL DISCOURSE

In various legal cases in India, the significance of protecting employee privacy in the workplace
has been underscored. These cases highlight the importance of upholding constitutional values
and individual rights while also addressing concerns related to security and public interest.
268
R Rajagopal v State of Tamil Nadu [1994] 6 SCC 632.
269
Chaitanya Ramachandran, ‘PUCL v. Union of India Revisited: Why India’s surveillance law must be
redesigned for the digital age’ <https://docs.manupatra.in/newsline/articles/Upload/E90FA90F-0328-49F2-B03F-
B9FBA473964F.pdf> accessed 06 February 2024.
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The judges set a precedent in Neera Mathur case270 emphasizing personal autonomy and
directing the elimination of intimidating questions about an employee’s personal life,
specifically about pregnancy, and directions regarding the surveillance and monitoring of
employees.
The G.R. Rawal case271emphasizes the importance of disclosing personal information only
when there are valid public interests, underscoring the significance of avoiding unnecessary
intrusions into privacy during government procedures. Additionally, government employees
are protected under the RTI 2005,272 which exempts personal information disclosure unless
overridden by public interest.
In Brett Raptakos Employees Company case,273 he examined objections to the installation of

CCTV cameras in a private factory, emphasizing the potential infringement on employee
privacy rights and the need for employers to balance privacy concerns with security
considerations. This case underscores the significance of maintaining a positive and
cooperative atmosphere in the workplace, which ultimately contributes to the well-being and
productivity of both employers and employees.
In AHAR v The State of Maharashtra case274the requirement for CCTV surveillance in

establishments where the employee would face stigma due to the nature of the job raises
concerns about infringing on individual privacy rights guaranteed by the Indian Constitution.
The court in the case of NausadRahaman275emphasized the constitutional value of preserving
family life and human dignity, recognizing privacy as an important principle under Article 21
of the Constitution.
The judiciary has thus through various decisions emphasized on privacy rights in the workplace
and the importance of employers implementing policies that respect individuals’ privacy while
maintaining organizational efficiency and transparency. Pursuant to these cases, it is impossible
270
Neera Mathur v LICAIR [1992] SC 392.
271
GR Rawal v Director General of Income Tax (Investigation) Ahmedabad [2008] Appeal No.
CIC/AT/A/2007/00490.
272
The Right to Information Act, 2005 (22 of 2005).
273
Brett Raptakos Employees Company v Deputy Commissioner of Labour [2014] SCC OnLine Mad 11448.
274
Indian Hotel and Restaurant Association (AHAR) and others v The State of Maharashtra and others [2019] (3)
SCC 429.
275
Sk Nausad Rahaman v Union of India[2022] 12 SCC 1.
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to overstate how urgently India needs comprehensive legislation governing labour regulation.
Addressing legal loopholes, improving free consent and data protection measures to create an
environment that promotes ethical workplace practices and protects employees’ rights and
dignity.
EMPLOYEE MONITORING AND PRIVACY LAWS IN DIFFERENT JURISDICTIONS
The United States

Global concerns about labour surveillance persist, extending across national borders, forcing
many countries to consider how to balance employee rights and employer interests in their
respective labour laws. The legal system of the United States is complex, with federal 276 and
state laws. 277 The Electronic Communications Privacy Act 278 serves as the cornerstone,
allowing employers to monitor employees for legitimate business purposes or with their
explicit consent. Furthermore, the National Labour Relations Committee requires labour and
employer organizations to collaborate on any video screening programme. The legal system of
the United States regarding labour law legislation is well understood, while India has no
specific legislation regarding employee surveillance challenges. Employees are at risk of
privacy violations due to a lack of strong legal protection. It means that the proposed rules
stated that they ban facial recognition technology, prohibit employers from using algorithmic
discipline, prohibit surveillance when employees are off-duty or using personal devices, make
data unavailable to employees, and employers are required to notify employees in advance of
surveillance practices. It also provides invaluable guidance for creating laws that prioritize
employee rights in the context of workplace technology development.
European Union & Germany

Barbulescu vs Barbulescu. Romania,279 a significant case in European law, emphasizes the
need for a sophisticated management strategy. The ECHR ruled that Article 8 of the
Convention was violated, highlighting Romanian authorities’ failure to protect workers privacy
rights.280 A parallel case being heard by the German labour Court in Bundesarbeitsgericht,
276
The Occupation Health, Safety and Welfare Act, 1984.
277
The California Labour Code, 2022.
278
Electronic Communications Privacy Act of 1986, Public Law 508, U.S.
279
Barbulescu v Barbulescu.Romania App no. 61496/08 (Commission Decision, 5 Sept. 2017).
280
The European Convention of Human Right, [1950] art. 8.
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BAG emphasized the importance of employee consent in data collection. While the court
condemned the illegal collection of employee data in other countries, it urged the German
parliament to enact strict labour laws. The main takeaway from this is that workers consent
must always be obtained, and workers interests must be treated equally. The EU is in charge
of the majority of employment-related regulations, particularly the General Data Protection
Regulation. 281 Employers must complete a full privacy impact assessment in accordance with
the GDPR before implementing monitoring software. The identification of potential needs and
challenges related to the use of enterprise computer management software depends largely on
these evaluation methods that include such aspects as the EU presents itself as maintaining
strict data protection guidelines and ensuring that management personnel follow the most
stringent privacy guidelines.
Australia
Australia has also put strict labour laws282 that are tailored to specifically take care of the issues
surrounding workforce management. This principle focuses on the ideas of openness and
confidentiality by requiring a highly transparent data system in a client organization which is
readily available to an employee. Under Australian labour law principle, a clear and formal
notice must be given by an employer to workers when introducing new monitoring activities
using transparent language. In addition, at most 14 days are allowed between scheduling or
operation monitoring systems that would be conducted and submitting these reports. This
statutory legalization reflects Australia’s attitude to ensure workplace rights, a clear work
environment, informed choice and compliance as norm.
Regulatory frameworks in the most developed states are highly elaborated; optimal employee
management owing to an adequate mean between employer interests and employees rights.
India should think of legislation similar to the United States which could completely solve
these issues. There will be a rules system available. These rules should contain information
practices, employee data access and non-workers restrictions as well personal devices tracking
among others; limitations on intrusive technologies like facial recognition software; ban
algorithmic punishment. All these will be promoted to the greatest possible extent along with
being openly available for access. To meet this, India could take legislation like the United
States to do so. The rule framework will be provided. Add to this a set of rules featuring open
281
The General Data Protection Regulation, [2016] L119/1–88.
282
The Privacy Act, 1988 (119 of 1988).
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information practices, employee data processing and tracking reductions among unemployed
individuals and personal devices bans absent invasive technologies activity like the face
recognition together with algorithmic-based discipline are projected for manual improvement.
AN ALTERNATIVE- RESOLVING EMPLOYEE MONITORING CONCERN THROUGH COLLECTIVE
BARGAINING
The common collective bargaining 283 is a workplace configuration intended at controlling

digital information. Although some collective bargaining agreements do not directly mention
cybersecurity it remains one of the key areas where effective security measures are negotiated.
Under CBA, Management can be involved in the development of considerate care standards
agreements on confidentiality and safety as well developing transparent policies. Such
agreements usually have the grievance procedure, and it allows workers to talk about privacy
problems resulting from surveillance. However, unions contribute to the appropriate balance
between employer’s responsibilities and employee’s privacy rights as they advocate for clarity,
transparency and consent. Likewise, in India collective bargaining can be one of the means to
cope with over-managing. Legal recourse is available to employees when employers fail to
abide by negotiated agreements. For instance, in Hinkley v. State284 a disciplinary action
regarding an alleged violation of the CBA provision which states that electronic surveillance
equipment must not be used for such purposes was addressed by court.
In different countries firms have succeeded in bargaining restrictions on the management of

employees. For instance, the Alaska Nurses Association285 and District of Columbia Nurses
Association286 have provisions about limiting use of badge tracking systems using RFID
technology that prohibits their disciplinary purposes. In addition to this unionization is given a
right for inspecting information generated by these tactics also Otis Elevator Co. v. local
case,287 CBA realized that an upgrade of technology is needed where detailed language on how
employees use devices in recording data, chatting and carrying out service-related tasks are
identified; new technologies entering the work environment trigger waves of anxiety among
283
284
Hinkley v State of New York [1922] 234 N.Y. 309.
285
Providence Alaska Medical Centre and Alaska Nurses Association, ‘Collective Bargaining Agreement’ (2021)
<https://aknurse.org-aana-cba-final.pdf/> accessed 07 February 2024.
286
District of Columbia Nurses Association, ‘Collective Bargaining Units”,
https://dcna.memberclicks.net/collective-bargaining-units accessed 07 February 2024.
287
Otis Elevator Co. v Union, Elevator, Local, [2005] 408 F.3d 1.
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employees which increase concerns about vulnerability during a fast-evolving period.

Therefore, trade unions play a significant role when seeking to advance workers’ 288 rights and
considering the pivotal aspect of early and open engagement, to this process consensus has
been defined by PSAC289 Collective Bargaining Unit which calls for wide wordings aimed at
enhancing employee’s abilities in terms of organizations changes management. The proposed
language includes a multi-step approach involving the more precise definition of technical
change, setting deadlines for detailed reports and disposing of discussing to identify risks
associated with technological changes as well as following Trade Union’s 290 dynamic concept.
Particularly, the employees influence to incorporate their various groups in formulating how
digital restructure can be; that reflects a willingness of creating an equitable workplace for all
workers. Through their endeavours to promote mechanisms of collective bargaining and
effective employee involvement, the trade unions contribute to directing a new future where
technology progresses are used for others benefit for employees, entailing of atmosphere better
world-of work as well as life. Such an approach could also be applied to India in the form of
full contractual guarantees on employee privacy rights and transparent investigations aimed at
dealing with worker concerns about overexposure, as well as the ability to balance employer
and employee interests through specific labour laws.
CONCLUSION
In conclusion, the lack of laws providing guidelines on employee monitoring in India’s labour
and employment law indicates an imbalance in power between employers/employers, which is
exacerbated by unrestricted data collection with behavioural monitoring. Surveillance, as a
legal practice, can be used for legitimate purposes such as increased security and productivity;
however, invasions of employee privacy raise ethical concerns and have serious psychological
consequences. Even though there are existing legal frameworks, such as the DPDP Act of 2003,
which manipulate deficiencies, they can be observed, particularly in terms of consent and
employee rights protection. Referring to international examples, there is a definite need for the
enactment of wholesome legislation in labour law on this issue, which will lead to transparent
e-monitoring cultures which respect employee’s privacy rights.
288
The Industrial Relations Code, 2020 (35 of 2020), s 2(zr).
289
Public Service Alliance of Canada, https://psacunion.ca/ accessed 7th February 2024.
290
The Industrial Relations Code, 2020 (35 of 2020), s 2(zg).
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CHILD RAGPICKERS: BREAKING THE VICIOUS CYCLE

* JASMEEN CHOUDHARY AND SATAKSHI TRIPATHI
ABSTRACT
The stolen childhoods of children who are working as ragpickers in an unorganised sector is
heartbreaking. Seeing the poor condition of child labours in India, the Central Government
formed the very first committee in 1979, the Gurupadswamy Committee, 291 to study the problem
of child labours in India. Based on the suggestions of this committee, the Child Labour
(Prohibition and Regulation) Act, 1986,292 was enacted. The Act was later amended in 2016,
which defined ‘child’ as an individual who has not completed 14 years of age or the age
specified under the Right of Children to Free and Compulsory Education Act, 2009,293
whichever is more. The aim of the Act is to put a bar on the employment of children in all
occupations. ‘International Labour Organisation’ has also defined ‘child labour’ and
recognised India as the largest shedload, considering it a major problem. The child labourers
who exist as ragpickers face problems, for instance, poor physical and mental health
conditions, harassment, exploitation, unpredictable pay structures, inadequate safety
measures, and uncertain working hours. 294 Despite providing mid-day meals, compulsory and
free education, and other facilities under various government schemes, child labour is still
prevalent in the roots of India. Without prejudice to the general causes of child labour, such
as lack of education and skills and children coming from poor economic backgrounds who
struggle to earn their daily bread and butter, there are other, not so commonly known reasons
that create a cause-and-effect relationship. The paper is an attempt to unveil those
uncommonly known causes of child rag-picking. The present paper aims to understand the
problems faced by child ragpickers in the unorganised sector, the vicious cycle of poverty,
challenges in eradicating it, protection under laws, and international conventions. The main
focus of this paper is to provide possible solutions to tackle the problem of ragpickers as child
labour at the grass-root level in India, coupled with future prospects.
KEYWORDS:RAGPICKERS, UNORGANISED SECTOR, CHILD LABOUR, POVERTY, EDUCATION.
291
Ministry of Labour and Employment, ‘Report of the Committee on Child Labour’ (December 1979)
<https://nvli.in/report-committee-child-labour> accessed 3 February 2024.
292
The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (61 of 1986).
293
The Right to Free and Compulsory Education Act, 2009 (35 of 2009).
294
International Labour Organization, ‘What is Child Labour?’ <https://www.ilo.org/topics/child-labour/what-
child-labour> accessed 03 February 2024.
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INTRODUCTION
The National Commission for Enterprises in the Unorganised Sector (NCEUS) Government of
India,295 defines ‘Unorganised Sector’ as the “sector which consists of all unincorporated
private enterprises owned by individuals or households engaged in the sale or production of
goods and services operated on a proprietary or partnership basis and with less than ten total
workers.”296 During the year 2019-20, around 43.99 crore297 individuals were engaged in the
unorganised sector. It acts as a source of daily bread for millions of people. The 165 th Law
Commission Report of India states that a large percentage of children in urban areas are
working in unorganised sector which also includes ragpickers. 298 Ragpickers collect rags from
streets, refuse heaps, river banks and localities, which also includes sorting and segregating the
collected waste for recycling purpose and thereafter selling it for their livelihood and
sustenance. The term ‘Child’ has been defined under the Child and Adolescent Labour
(Prohibition and Regulation) Act, 1986, as an individual who has not completed 14 years of
age or the age specified under the Right of Children to Free and Compulsory Education Act,299
whichever is more.300
The unorganised sector workers not only include adult rag pickers but also child rag pickers.
International Labour Organisation (herein after referred as ‘ILO’) defines ‘Child Labour’ 301 as
a work which adversely affects the child mentally, physically, socially, morally and
educationally. It takes away a child’s dignity, childhood, and future. ILO recognises child rag
pickers as major issue as child rag pickers work in an environment full of hurdles, insecure
environment and hazardous products as a result they get exposed to harmful chemicals which
makes them more vulnerable to diseases like cancer, tuberculosis, stomach and skin infections
and many more. Due to exposure of such environment, they often become drug addicts. Rag
picking further leaves psychological trauma affecting their mental health due to lack of parental
295
National Commission for Enterprises in the Un-organised Sector, Report on Conditions of Work and Promotion
of Livelihoods in the Unorganised Sector (Ministry of MSME, 2015) 1 <https://msme.gov.in/national-
commission-enterprises-un-organised-sectornceus> accessed 03 February 2024.
296
Ibid.
297
Number of Workers in Unorganised Sector, Press Information Bureau, 1942079 (24 July 2023)
<https://pib.gov.in/PressReleasePage.aspx?PRID=1942079#:~:text=As%20per%20the%20Economic%20Surve
y,As%20on%2018.07.> accessed 03 February 2024.
298
The Law Commission of India, Free and Compulsory Education for Children (Law Com No 165, 1998) 2.2.2.
299
The Right to Free and Compulsory Education Act, 2009 (35 of 2009).
300
The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (61 of 1986) s 2(iii).
301
International Labour Organization (n 295).
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love, violent environment and so on. All these factors lead them to live an undignified life and
also deprives them of education which becomes a reason for lack of job opportunities in future.
Since parents are not aware about the importance of family planning, it is commonly seen that
the family size of these children is such that due to insufficiency of adult income it pushes
children to work as rag pickers in order to act as a source of supplementary income for the
survival and the sustenance of the family.
The Universal Declaration of Human Rights302 (herein after referred as 'UDHR') lays down the
Articles related to human rights with the aim that every human being is able to live a dignified
life. However, looking at the conditions and problems faced by child rag pickers of India, it
can be understood that these children face violation of basic human rights provided by
UDHR303 and the Constitution of India. 304 Various studies suggest that the main cause behind
child labour is poverty, illiteracy, and family-based child labour. Since rag picking is a part of
unorganized sector it is quite difficult to adequately measure the amount of waste collected by
them.
Despite the existence of municipal bodies huge amount of waste is collected by ragpickers,
who work without job security, proportionate pay structure, proper safety equipment and health
facilities. If the human rights of child rag pickers continue to remain violated then it will
hamper the development of not only the child but also the future generations, as a result a large
population of India will remain stuck in this vicious cycle which will eventually affect the
country’s overall social and economic development. Moreover, such violation of human rights
of child rag pickers will become a mockery of human rights provided by UDHR, 305
Constitution of India306 and other Labour laws. Child rag pickers have now long been a
neglected section of the society; hence, it is high time that we shift our attention towards child
rag pickers and not only frame strict laws against child rag picking but also ensure that they
are effectively implemented.
REASONS BEHIND CHILD RAGPICKING
302
Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res 217 A(III) (UDHR) art 5.
303
Ibid.
304
The Constitution of India, 1950.
305
Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res 217 A(III) (UDHR) art 5.
306
The Constitution of India, 1950.
|Page 104
There are numerous factors which acts as major reason towards pushing children into rag
picking practices. The list is endless; however, it is observed that poverty and large family size
is the main reason behind child rag picking. Since due to lack of awareness about family
planning and population control measurements, family size of these children is often seen to
be large and due to insufficiency of adult income and out of necessity children are pushed into
rag picking in order to support their family and act as a source of supplementary income for
the survival and sustenance of the family.
Due to lack of awareness about government schemes, right to free and compulsory education,
facilities of mid-day meal, these children remain out of school as a result lack of education
among parents and children becomes another contributing factor for children to work as rag
pickers. The attitude of parents is also shaped by their education, it is seen that parents who
were educated or possessed at least basic elementary education were found to send their
children to school, as they understood the importance of education in comparison to those
parents who were not educated. Often lack of resources forces parents to stop their children
from going to school. Even if they manage to send their children to schools, they involve them
in the work of rag picking after school timings.
Moreover, children who migrate from their native place to a bigger city including run-away
children who either due to violent behaviour in their family’s or due to poor economic
background choose to run away from their native place with the hope in their eyes that they
will earn better in bigger cities from rag picking. Another factor that contributes in migration
of children is death of parents, which leaves them as orphan, as a result in order to earn a
livelihood for themselves they migrate from their village to bigger cities and start working as
child rag pickers because by picking rags they are able to earn their daily survival needs.
In the current scenario holding of Aadhar card, voter ID card, as a valid identity proof is
compulsory. The child rag pickers who migrate from, for example, West Bengal to Delhi are
often perceived as Bangladeshi’s and are often denied by the Jan Suvidha Kendra to apply for
Aadhar card over the suspicion of being a Bangladeshi, hence it leads to lack of valid identity
proof. As a result, without a valid identity proof these children are deprived of the chance of
getting employed at a better place, therefore, in order to survive they star to work as child rag
pickers which does not require any identity proof.
|Page 105
Last but not the least, due to lack of specific laws for child rag pickers it becomes difficult to
tackle the problem of child rag picking. There is no specific law dealing with child rag picking
as a result without any monitoring system and specific legislation it becomes easy for children
to enter into rag picking practices. Unorganised sector opens door for child labour, since there
is no specific monitoring mechanism and due to its unorganised nature, it becomes very
difficult to adequately quantify the number of children working in unorganised sector.
Therefore, children and employers (who employ children as rag pickers), takes advantage of it
and make them enter into rag picking. Though unorganised sector offers various work options
but children choose to work as rag pickers because by selling rags they earn better compared
to other child labour practices of unorganised sector.
LEGAL ANALYSIS
International Conventions
The Minimum Age Convention, 1973 (herein after referred as ‘Convention No. 138’) was
brought into effect with the aim to achieve total abolition of child labour in any form whether
under organised or unorganised sector.307 Article 1 of the said Convention mentions that each
member of ILO for whom this convention is coming into force shall undertake to make a
national policy which will be specifically designed to make sure that child labour is abolished
and to increase the minimum age of employment which should be in consistence with the fullest
physical and mental development of young persons. 308 Further, Article 2 states that each
member after ratification shall specifically declare a minimum age for admission to
employment or work, the convention also states that the minimum age of employment shall be
made in consonance with the age of completion of compulsory schooling and in any
circumstance should not be less than fifteen years, however the ratifying country as per their
law may specify the minimum age of employment to be fourteen years. 309 No child shall under
the specified age be employed or admitted to work under any circumstances. Moreover, Article
3 states that the ‘minimum age to any work which by, its nature or circumstances in which it is
carried out is likely to jeopardize the health, safety or morals of young persons shall not be less
307
Minimum Age Convention, 1973 (138 of 1973) International Labour
Organisation<https://normlex.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE
:C138> accessed on 04 February 2024.
308
The Minimum Age Convention 1973 (138 of 1973) art 1.
309
Convention (n 309), art 2.
|Page 106
than eighteen years,’ which shall be determined as per the National Laws of the ratifying
country.310
India is the 170th country to ratify the Convention No. 138 and hence it is mandatory for the
Government of India to take necessary steps for the effective implementation of this
convention. 311 Child rag picking is a part of child labour and India being the ratifying country
should make required policy for complete eradication of child labour in organised and
unorganised sector including child rag picking. Additionally, as rag picking is a work which
by its very nature and circumstance is harmful for the health, safety and morals of the children
working in it shall in consonance with Article 3312 and Article 9313 shall take the steps to
eradicate the problem of child rag picking and should abide by the International Convention of
ILO in effective manner.
Later in the year 1999, Worst Forms of Child Labour Convention no. 182 came into force after
considering the necessity to bring into force new instruments to prohibit and eliminate ‘worst
forms of child labour’ which needed immediate, comprehensive and more effective action for
the elimination of child labour.314 The aim of this convention is to take into account the
importance of free and basic education, the requirement of removing children working in worst
forms of child labour, additionally, providing rehabilitation and addressing the needs of their
families. This convention aims to recognise that the main cause of child labour, that is poverty
and the solution to it lies in the social progress of the country coupled with sustained economic
growth, alleviation of poverty and universal education. 315 Article 3 of the said Convention
mentions certain conditions which will come under the category of ‘worst forms of child
labour’ and clause (d) of Article 3 clearly states that the worst form of child labour will include
any work which may be harmful to the health, safety, or morals of children by virtue of its
nature or circumstances. Since rag picking exposes children to an environment which certainly
is harmful to their health, safety and moral due to exposure to toxins, pool of sanitary napkins,
used diapers, used syringes, blades, rotten fruits and vegetables and so on, will surely come
310
Convention (n 309), art 3.
311
312
Ibid.
313
The Minimum Age Convention, 1973 (138 of 1973) art 9.
314
United Nations Human Rights <https://www.ohchr.org/en/instruments-mechanisms/instruments/worst-forms-
child-labour-convention-1999-no-182> accessed 04 February 2024.
315
Ibid.
|Page 107
under the category of ‘worst forms of child labour’ and hence India being the ratifying member
of this Convention, should take ‘immediate and effective’ measures to prohibit and eliminate
child labour including child rag picking as mentioned in Article 1 of this Convention. 316
Furthermore, International bodies like UDHR, International Covenant on Economic, Social

and Cultural Rightsṅ317 (herein after referred as ‘ICESCR’), the Convention on the Rights of
the Child318 (CRC), United Nations General Assembly319 (herein after referred as ‘UNGA’),
the ILO’s International Programme on Elimination of Child Labour320 (herein after referred as
‘IPEC’), and so on have also laid down various provisions for child labour such as Article 25(2)
of UDHR mentions ‘motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social protection.’ 321
Therefore, it can be understood that children require special care and assistance and by
exposing them to activities like rag picking they are being deprived of this need of special care
and assistance. The ICESCR, Article 13 lays down that primary education should be available
to all freely and compulsory as it is right of every individual. 322 India being a signatory and
ratifying member of these conventions have introduced legislations to provide free and
compulsory education but in reality, majority of Indian children from poor economic
background are deprived of the benefits of such legislations due to lack of awareness and failed
implementation mechanisms of government as a result they enter into child labour which
includes child rag picking. Moreover, in the year 1992, the IPEC was established and is the
largest and biggest operating programme of the ILO. 323 The aim of the IPEC as the name
suggest is to eliminate the child labour worldwide. Child labour particularly child rag picking
prevents a child from gaining the skills and education they need for a bright future.
316
UNHR (n.315).
317
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into
force 3 January 1976) 993 UNTS 3 (ICESCR).
318
The United Nations Convention on the Rights of the Child, 1989 GA resolution 44/25.
319
United Nations <https://www.un.org/en/ga/> accessed 4 February 2024.
320
321
Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res 217 A(III) (UDHR) art
25(2).
322
The International Covenant on Economic, Social and Cultural Rights, 1966 GA. Resolution 2200A (XXI), art
13.
323
International Labour Organisation, ‘History of International Labour Organisation’
<https://libguides.ilo.org/c.php?g=657806&p=4649136#:~:text=The%20Programme%20was%20officially%20l
aunched%20in%201992.%20IPEC,acts%20through%20technical%20cooperation%20i%20n%2088%20countri
es.> accessed on 03 February 2024.
|Page 108
HUMAN RIGHTS VIOLATION OF CHILD RAG PICKERS

The UNGA in the year 1948 unanimously adopted UDHR.324 It is the most important
declaration and document in the history of international agreement among countries on the
issue of human rights which also includes the rights of children. Human Rights are the
fundamental rights existing as an essential constituent for every individual free from any kind
of discrimination325 which includes right to live with dignity. UDHR lists all the rights which
are universally applicable to every individual. India is a ratifying member of UDHR, and the
Constitution of India is influenced by UDHR, where Article 21 326 of Constitution of India is
reflective of preamble of UDHR which provides that every individual has a right to live with
dignity. It has been observed many a times that the provisions of both, the Constitution of India
and UDHR has been violated. Children who are working as rag pickers are being deprived of
the right to education327 which is a basic human right as provided by UDHR and the
Constitution of India.
These children are being deprived of dignified life, medical care, standard of living and social
security. 328 They are seen as a secluded section who mainly live in the outskirts of cities, mostly
in slums or streets where proper sanitation facility is not provided and are treated badly due to
the work they do and the place they live in. Also,the place where these child ragpickers work
is not a favourable environment for their health and hence violative of basic human rights.
UDHR mentions that through national effort and corporation a social security should be
available to every member of the society, however, what is a matter of concern is that there is
no enough legislation, or national effort to provide and maintain social security for child rag
pickers in India.329
Therefore, it can be inferred that it is a matter of serious concern that the child rag pickers are
living a life violative of the basic human rights provided by UDHR and the Constitution of
India which is problematic and in need of urgent attention.
324
Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res 217 A(III) (UDHR) art
25(2).
325
Universal Declaration of Human Rights (adopted 10 December 1948) (n 326).
326
The Constitution of India, 1950, art 21.
327
Universal Declaration of Human Rights (adopted 10 December 1948) (n 326) art 26.
328
Universal Declaration of Human Rights (adopted 10 December 1948) (n 326), art 22.
329
Ibid.
|Page 109
Constitutional Safeguards
The Constitution of India provides safeguards to its every citizen, therefore child ragpickers in
India also have these Constitutional safeguards. Article 15(3) 330 says that special provisions
can be made for women and children, therefore, by virtue of this Article special provisions
should be made for child rag pickers since the nature of rag picking is injurious, they need
special care and treatment. Even though they are provided with these safeguards, they are far
from availing them due to lack of awareness and the social stigma attached to them which halts
their ability to see behind the garbage dumps.
The 86th Constitutional Amendment Act331 was enacted with the aim of making free and
compulsory education for all children between 6 to 14 years of age a fundamental right under
Article 21A,332 this Article mandates the State to provide free and compulsory education to
each and every child of six years to fourteen years of age. The manner may be determined by
the State itself as per the law. It was held in the case of State of Tamil Nadu v. K Shyam
Sunder,333that right under Article 21A334 is not only limited to free and compulsory education
but also includes providing quality education to the children without discrimination of child’s
economic, social, and cultural background. The Honourable Supreme Court of India in the case
of State of Uttar Pradesh v. Pawan Kumar Dwivedi,335 held that it is a constitutional mandate
on the State to provide free and compulsory education to the children till they complete the age
of fourteen years. To give the 86th amendment effect the Right of Children to Free and
Compulsory Education Act, 2009 was enacted by the Parliament.336 The Act lays down under
section 3of chapter II,337 that each child belonging to the age group of 6 to 14 years, has the
right of free and compulsory education until he or she completes his or her elementary
education, and as per section 2(f) 338 elementary education under this Act means education from
1st to 8th class, this right can be availed in a neighbouring school and section 6 clearly mentions
that the appropriate Government and the local authority should establish a school within such
330
331
The Constitution of India, 1950, 86th Amendment Act 2002.
332
The Constitution of India, 1950, art 21A.
333
State of Tamil Nadu v Shyam Sunder and Ors [2011] 8 SCC 737.
334
Ibid.
335
State of Uttar Pradesh v Pawan Kumar Dwivedi [2014] 9 SCC 692.
336
The Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009).
337
The Right to Free and Compulsory Education Act, 2009 (35 of 2009), s 3.
338
Right to Education (n 339), s 2(f).
|Page 110
limits. The term ‘compulsory education’ under this Act imposes mandatory obligation on the
appropriate Government to provide free and compulsory education to the child within the age
limit prescribed. Section 14339 of the said Act lays down the requirement of age proof for
admission purpose, and sub section 2 specifically lays down that ‘no child shall be denied
admission in a school for lack of age proof’ however, due to lack of awareness among children
or parent or guardian from marginalised sector,340 it often becomes a cause of misconception
that due to lack of identity proof they will not get admission even for basic elementary
education as a result they get stuck in child rag picking and the cycle of illiteracy continues.
However, merely providing the rights in laws is not sufficient, proper monitoring is also
necessary in order to ensure that the rights are not curtailed. Therefore, Article 31 of the Act
was made for the purpose of monitoring the rights of children by the National Commission for
Protection of Child Rights or the State Commission for the Protection of Child Rights along
with the functions which are already assigned to them will examine and review, 341 inquire into
the complains, and take necessary steps for the effective implantation of the Act, but if we see
the condition of child ragpickers, it can be inferred that the right of free and compulsory
education has not yet reached to them; they are unaware of the fact that any fundamental right
like this even exists. If we see the condition of the ragpickers in India, it seems that the
provisions are merely in books.
Additionally, Article 24 strictly prohibits employment of children below the age of 14 in any
factory or mine or engaged in any hazardous employment.342 The prohibition under Article 24
is absolute and is not limited by any exception for employment of child in any ‘hazardous
activity’. 343 The Supreme Court of India through Public Interest Litigation filed in the case of
M.C. Mehta v. State of Tamil Nadu,344held that no person below the age of 14 years shall be
employed in any hazardous work. The court further directed to setting a special welfare fund
for Child Labour Rehabilitation and asked the employer who was the offender to deposit the
amount of 20,000 rupees in that fund and suggested various methods in which the funds can be
used. In case if the employer is not able to give job to that person, the government in that case
339
Right to Education (n 339), s 14.
340
Ibid.
341
342
343
344
MC Mehta v State of Tamil Nadu and Ors AIR 1991 SC 417.
|Page 111
asks the offender to deposit 25,000 rupees in the fund for each child employed in any hazardous
occupation. The SC gave two options to the offender, first, he will give a job to an adult family
member of that child, second, he will deposit 25,000 rupees in the fund. In the case where
family members get the job, it’s the duty of that family member to ensure that the child is not
working there anymore. The interest of income by 25,000 rupees will be given top child’s
family up to the age of fourteen years for the main purpose of education. The court issued some
direction:
A. Regular survey in every six months;

B. The manner in which the children working in hazardous occupation will be shifted to
rehabilitation;
C. Ensure that the children are going to schools;
D. Regulating hours of children working in non- hazardous occupations (maximum six working
hours and minimum two hours of education).
Further, Article 39 provides ‘Certain principles of policy to be followed by the State’, and
Clause (e) states that the State shall in particular direct its policy towards securing the tender
age of the children which is not abused and that citizens are not forced by economic necessity
to enter avocations unsuited to their age or strength. 345 However, child rag picking goes against
the provision of Article 39(f) as out of the economic necessity, that is poor family economic
background of child rag pickers, they are forced to enter into rag picking activities which is
unsuited to their age and also due to exposure to toxic environment they don’t get the
opportunity to grow in a healthy manner. In compliance with Article 39 the government should
take necessary steps and should effectively implement them, without the effective
implementation of the laws and policies, the problem of child rag picking cannot be solved. 346
LABOUR LAWS
Child Labour is not only prohibited under Constitution of India but also has been prohibited
under various labour legislations. The very first committee to handle the problem of child
labour was formed in 1979 347 which was known by the name of Gurupadswamy committee.
345
The Constitution of India 1950.
346
Ibid.
347
Ministry of Labour and Employment <https://labour.gov.in/childlabour/about-child-labour> accessed 03
February 2024.
|Page 112
The problem was largely examined and understood by the committee which also gave some
recommendations. The main observation which was done by the committee was that the
ultimate cause for child labour is poverty, no legal recourse would be effective as long as the
children will remain stuck in the vicious cycle of poverty. The main contention which was
given by the committee was that the only way to stop child labour is by prohibiting it in any
hazardous area and to regulate the working environment. The Child Labour (Prohibition and
Regulation) Act348 was enacted on the recommendation of this committee. The aim of the Act
was to prohibit child labour in any hazardous working environment. Also, this Act focuses on
the health and safety of children in working area.
However, the amendment of the year 2016 substituted its nomenclature by The Child and
Adolescent Labour (Prohibition and Regulation) Act, 1986.349 Now the Act is stricter and aims
to prohibit the engagement of children below the age of fourteen years in all occupations and
also prohibits the employment of adolescents, a person who has completed the age of fourteen
years but has not completed the age of eighteen years, in hazardous occupations and process.
Part A of The Schedule prohibits certain occupations and Part B of The Schedule prohibits
certain processes.350 The Act approximately prohibits thirteen occupations and fifty-one
processes. As per Clause (57)351 of Part B of The Schedule of The Child and Adolescent Labour
(Prohibition and Regulation) Act, 1986, it is prohibited to employ or permit process of child
rag picking. If any person is seen as employing any child in rag picking will be punished with
imprisonment for a term which may vary from three months to one year or with a fine which
may extend from ten thousand to twenty thousand rupees or with both.
The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986,352 is the only Act
so far which recognises or prohibits the process of child rag picking. Even after numerous
labour legislations not enough recognition has been given to child rag picking. It is a serious
issue and therefore, laws should be enacted and enforced with special and stricter provisions
related to child rag picking.
348
The Child Labour (Prohibition and Regulation) Act 1986.
349
The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (61 of 1986).
350
Ibid.
351
Ibid.
352
Ibid (n.351).
|Page 113
Loopholes
There are various labour laws prohibiting and regulating child labour whether in organised or
in unorganised sector. However, there is no specific legislation regulating and prohibiting child
ragpickers, who constitute a major part of India. There is no specific law which provides
protection to the ragpickers. This is a major loophole which needs to be addressed. Since they
are not a part of organized sector that is why it is difficult to ascertain the correct population of
ragpickers present. Although it is the job of municipal corporations to collect the waste of the
cities and then send it for recycling or dumping process, but due to their ignorant behaviour
towards waste collection, ragpickers find a medium for themselves and looks at it as an
opportunity to earn. They do the job so as to earn a sufficient amount of money to run the
family. They are not recognised by their names but by their job. It’s their basic right to get an
identity. Rag picking is prevalent in India for many years now and it is high time it should be
recognised and given a protection under the law, which will specifically deal with ragpickers
and rag picking and strict provisions should be made to eradicate child rag picking as it is very
harmful for the children to work in that environment, because of their weak immune system.
The term ‘Child’ has been defined by many labour laws. Some defined it as a person not below
the age of 14 years, while some restrict it to 15 years of age and some 16 years of age. In
Hazardous processes the age is specified to be not below the age of 18 years of age. As the
child labour is prohibited in India, the definition of child must be same in each labour law so
that the uniformity can be maintained.
SUGGESTIONS
1. ORGANISED SECTOR:
Rag picking is a part of unorganized sector, as a result it becomes difficult and nearly
impossible to adequately measure the number of children working as ragpickers in India. Since
it is a part of unorganised sector its monitorization, recognition becomes difficult, therefore, it
is suggested that rag picking should be made a part of organized sector so that child rag picking
and child labour as a whole can be effectively monitored, identified, and data can be collected.
Additionally, child labour as a whole should be dealt with stricter provisions and strict penalties
should be imposed on persons breaking the law.
2. IMPLEMENTATION MECHANISMS:
|Page 114
As already discussed, India has legislations for free and compulsory education, constitutional
safeguards and other laws specifically prohibiting child labour. However, what acts as a
hinderance is that there is no proper channel and mechanism for proper implementation of these
laws, apart from few non- profit organisations and non- government organisations, there is no
specific government organisation running to monitor and tackle the problem of child rag
picking. It is therefore suggested that government organisation should be formed specifically
for monitoring child rag picking which may help in eliminating the problem.
3. ORGANIZED WASTE MANAGEMENT SYSTEM:

India lacks organized waste management system; therefore, it is suggested that proper planned
waste management system should be there. Both in urban and rural areas, waste should be
collected through Waste Collection method either from door to door or through community
waste collection bins and then the collected waste should be segregated with the help of
machines and likewise recycled. This will ensure that manual rag picking whether done by a
child or an adult is eliminated and no ragpicker is exposed to toxic waste and henceforth
creating an organized waste management system.
4. EDUCATION:
Right to Education is the fundamental right of every person. The opportunity is always open
for them but because of lack of awareness of the importance of education, they don’t feel right
to avail it. They should be provided trial classes so that they take interest in studying which can
further lead them to enroll in schools. The parents’ education also matters. There’s no age for
getting knowledge, with this, the parents should also be encouraged to get proper education.
Awareness campaigns should be run by the government, NGO’s and other private
organisations.
5. ERADICATION OF POVERTY:
Poverty is a major cause behind rag picking. It can be eradicated by providing the adult
members of the family with proper wages in any job they do whether in organized or
unorganized sector. If they will earn enough to fulfill the families need then the children of the
family will be free to get education which is their basic right under the Constitution of India.
6. ENSURING IDENTITY:
Proper Identity should be provided to the child ragpickers like, Aadhar Card, Voter ID card,
etc. The government should monitor the places where rag pickers live and then run campaigns
|Page 115
in the area in order to ensure that all the people living there are provided with the proper identity
card. This will help them to avail the benefits of government schemes.
7. CREATING JOB OPPORTUNITIES:

With the help of organized waste management system job opportunities can be created for
workers, and they can be employed by municipal corporations in executing municipal waste
collection method, further, they should be properly trained to handle machineries while waste
segregation and recycling process. This will ensure a fixed pay scale, working hours, working
days, job security, etc. and hence will help improve their standard of living.
8. AWARENESS CAMPAIGNS:
Lack of awareness is the key reason why child rag picking is still very common in India. People
are not aware about their rights, government schemes, non-government organisations, running
in their area or locality. Henceforth, it is suggested that not only government bodies but also
schools, colleges, should run awareness campaigns for example, through ‘nukkadnatak’.
9. POPULATION CONTROL:
Throughout the research it was observed that due to the increasing population of our country,
families are going under poverty and lack of awareness about family planning is a major issue
as well. Therefore, it is high time for the government to introduce strict family planning
schemes and effectively implement them in order to control population of our country.
CONCLUSION
The ‘Unorganised Sector’ being unorganised in nature, the accurate number of workers
working in this sector is hard to determine. Child rag picking is a part of both unorganised
sector as well as child labour and as it is in existence for years ago. Child ragpickers are the
invisible part of the society who plays an important role in the cleanliness but by giving up
their basic human rights. Although, the Constitution of India and various other labour laws for
example, the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, 353 the
Factories Act,1948354 and many more, prohibits ‘child labour’ and lays down provisions
regarding violation of these Acts, it is still prevalent and of serious concern. India is also a
353
The Child Labour Act (n 351).
354
The Factories Act, 1948 (63 of 1948).
|Page 116
signatory to various International Conventions which aims to eradicate child labour but due to
the lack of strict implementation it still exists in India. The Child Labour (Prohibition and
Regulation) Act, 1986355 prohibits rag picking in Part B of The Schedule but it is not mentioned
in the list of hazardous process. Child rag picking is a major problem concerning the health of
the children as they are more prone to the harmful substances which are present in the garbage
dumps which can take the form of tuberculosis, cancer or any other serious disease which can
be fatal. There are various reasons which contribute towards pushing children into rag picking
such as, poverty, illiteracy, awareness, lack of education, large family size and so on. Child
ragpickers acts as the supplementary source for their family due to the inability of the adult
members of the family to earn a sufficient amount of money to run a family. Similarly, the
problems faced by the child rag pickers is also endless. Working as ragpickers affects the
overall development of the child. They stuck in the vicious cycle of poverty and illiteracy which
stops them from getting even basic elementary education. With a positive outlook, few steps
are suggested to eradicate the problem of child rag picking such as waste segregation
mechanism, stricter implementation of schemes, creating job opportunities, making laws and
so on. They should be provided with proper identity proof and rehabilitation so that they can
live a dignified life. Strict implementation of the existing laws and policies is the need for the
hour otherwise the basic human rights of those people will continue to be violated. In the words
of Justice Subba Rao, “Social justice must start with the child, Until and unless a tender plant
is properly tended and nourished, it has a small chance of growing into a strong useful tree. So,
the first preference in the plate of justice should be stated to the well-being of children”.
HARMONIZING LABOUR LAWS WITH THE SHIFTING PARADIGMS OF

‘WORKMEN’ IN INDIA’S DYNAMIC IT SECTOR: AN ANALYSIS
*MEEMANSAAYACHI AND ANUPAM MISHRA
ABSTRACT
The ever-evolving dynamics of a nation demand its laws to evolve alongside. The emerging IT
sector in the nation and increasing recruitment in it necessitates the same, both in terms of
employees and its regulation. The introduction of labour laws in India serves multiple
objectives aimed at creating a fair and just work environment, protecting the rights and
interests of both employers and employees, and fostering social and economic stability. The
355
Ibid.
|Page 117
prevailing source of friction arises when such mechanism does not extend to such an important
sector, like IT and creates ambiguity. As a key contributor to employment and innovation, the
IT industry has become a pivotal component of the nation’s workforce and it becomes of utmost
importance that a sector as crucial as IT be regulated by Labour laws.The paper then
introduces the dynamic landscape of the Information Technology (IT) sector in India,
underscoring its significant role in the country’s economic growth. This paper undertakes a
comprehensive legal analysis of the evolving definitions of “workmen” in the Indian context,
with a specific focus on the IT sector. The analysis commences by revisiting the existing
definition as outlined in the Industrial Disputes Act of 1947. The historical context provides a
foundation for understanding the paradigm shift brought about by new labour codes in
India.The incorporation of the IT sector into the new labour codes is explored, shedding light
on how legislative changes have adapted to the evolving nature of work in the digital age and
what are the persisting grey areas that need more clarification. This paper outlines key
provisions and amendments within the new labour codes that directly impact the classification
of IT professionals as “workmen.”A focal point of the paper is the in-depth analysis of various
judicial decisions that have addressed the status of IT employees as workmen. Through an
examination of these legal precedents, the paper aims to discern patterns, discrepancies, and
nuanced interpretations that have contributed to the evolving understanding of the term
“workmen” within the IT sector. By evaluating the implications of these judicial decisions, the
study seeks to provide insights into the current landscape and potential future trajectories for
the classification of IT professionals in India. Additionally, it will also analyse Internationally
settled laws relating to regulation of Labours in various countries and how can India
incorporate the same for better regulation and governance of the sector.
KEYWORDS:
Workmen, IT Sector, Employees compensation, Employee, Labour codes.
INTRODUCTION
In today’s intricate world, competition is widespread, using individuals as instruments to attain
materialistic goals. The prevailing characteristic of this competitive and materialistic global
|Page 118
environment is the exploitation of one person by another. The era of laissez-faire,356 which
refrained from state interference in trade and commerce, favoured capitalist-employers, turning
them into exploiters of humanity. This led to a widening gap between the rich and the poor,
with laissez-faire fostering labour exploitation and victimization due to the weaker position of
the labour class. Over time, the concept of a welfare state has brought about significant changes.
The emergence of industrial democracy within democratic welfare states has led to
participative management, transforming the dynamics between employers and employees. 357
As people become increasingly aware of their entitlement to a lifestyle aligned with human
dignity and express a growing aspiration for circumstances that guarantee such a life, global
populations are placing greater significance on human rights.
With such advancements in the country, the concept of Labour laws was introduced, which
aimed at effective regulation of labour class. 358 This was also the objective of enforcing labour
laws in India. Labour rights have been integral to the social and economic development since
its advent and have played a key role in fostering the economy of the country. However, the
perplexity arises with its scope and enforcement when the laws are unclear about their
applicability to certain sectors of the country.
The Information Technology (IT) sector in India has been instrumental in elevating the
country’s global standing. It stands as a major driver of economic growth, playing a pivotal
role in reshaping India’s identity from a sluggish bureaucratic economy to a hub of innovative
entrepreneurs and a prominent player in delivering top-notch technology solutions and business
services worldwide. This industry has been a catalyst in the transition of India from an economy
centred on rural and agriculture sectors to one rooted in knowledge and information. A sector
as important as IT that has employed 51 lakh persons in FY 2021-22359 and with a revenue
generation of 227 billion USD 360, the sector stands as a pivotal source of Indian economy. The
356
Dukes R, ‘From Collective Laissez-Faire to the Law of the Labour Market’ (Oxford University Press eBooks,
October 16, 2014) <https://www.google.com/academic/product/the-labour-constitution>accessed 31 January
2024.
357
King D.S., ‘The State and the Social Structures of Welfare in Advanced Industrial Democracies’, 1987 vol. 16
JSTOR <https://www.jstor.org/stable/657540&ved> accessed 31 January 2024.
358
Government of West Bengal, Department of Labour Law, ‘Objectives, Department of Labour”
(wblabour.gov.in) <https://www.google.com/url?sa=t&sou> accessed 31 January 2024.
359
Press Information Bureau Government of India, Ministry of Electronics & IT, “Number of Employees in IT”
(pib.gov.in, 3 Aug 2022) <https://www.google.com/url?sa> accessed 31 January, 2024.
360
Nasscom, ‘Technology Sector in India 2023: Strategic Review, Nasscom’ (Nasscom.in, 2023)
<https://www.google.com/> accessed 31 January, 2024.
|Page 119
debate arises when certain benefit under the law is not provided to people employed in the IT
sector despite the humongous size they hold in the country.
The research undertaken in this paper will aim at exploring various facets of this side and
analyse whether the current law suffices the need of the globalised India, and what are the
possible developments in the field to find a way in prevailing labyrinth.
TRACING THE DYNAMICS: HISTORICAL EVOLUTION

India’s labour laws have developed gradually throughout time with the aim of safeguarding the
interests and rights of employees. During British colonial administration in the early 20th
century, labour rules began to take shape. Due to poor working conditions and widespread
labour exploitation in factories, legal protections were necessary and so the need for Labour
laws was felt in the country. The initial legislation in India to govern the employer-employee
relationship was the Trade Dispute Act, 1929.361 While this act included provisions to restrict
the rights of strikes and lockouts, it lacked mechanisms for dispute resolution.
After gaining independence, significant amendments were made to this colonial-era law to
establish a more collaborative relationship between labour and capital. In a tripartite conference
held in December 1947,362 it was unanimously decided that labour should receive fair wages
and working conditions, and in return, capital would benefit from labour’s full cooperation to
ensure uninterrupted production and increased productivity. This mutual understanding
included a truce period of three years, free from strikes and lockouts. Subsequently, the
Industrial Disputes Act (the Act)363 was enacted on April 1, 1947, replacing the previously
enacted Trade Disputes Act 364 and has since remained a part of the statutory framework.
With various amendments in between the time for enhanced legislatives in welfare of labours,
the recent development of central government has codified 29 laws into 4 Codes, 365 claiming,
361
Trade Disputes and Trade Unions Act, 1927 (17 & 18 Geo. 5. c. 22)..
362
Government of India, Ministry Of Labour & Employment, “Introduction Ministry of Labour &
Employment/Government of India” (labour.gov.in, 03 May 2023) <https://labour.gov.in/introduction-
1#:~:text=A%20tripartite%20Committee%20Viz.%2C%20%22,of%20wage%20policy%20in%20India.>
accessed on 31 January, 2024.
363
The Industrial Dispute Act, 1947 (14 of 1947).
364
Trade Disputes and Trade Unions Act, 1927 (17 & 18 Geo. 5. c. 22).
365
Government of India, Ministry of Labour & Employment, “Labour Law Reforms Ministry of Labour &
Employment/Government of India” <https://labour.gov.in/labour-law-reforms>accessed on 31 January, 2024.
|Page 120
so that workers can get security along with respect, health, and other welfare measures with
ease, was another drastic step.
The code on
Social
Security
Occupational
NEW Safety, Health
The Code on LABOUR and Working
wages Conditions
CODES
Code
Figure 1: New Labour codes after amalgamation of previous legislations.

The Indian IT corporation Industrial benefited greatly from numerous
Relations
exemptions from the basic rules Code. and regulations governing worker
employment that are placed on companies. The 1946 Industrial
Employment Standing Orders Act 366 did not apply to the IT industries. 367 However, since the
government is now involved, the IT sector, like other sectors, will have to abide by the rules
and regulations set forth by the government. The recent and ongoing economic trend has
resulted in a number of job cuts and modifications to the hiring process, neither of which have
been warmly received by the nation’s youthful IT workforce.368
INDUSTRIES EXPLORED: PATTERNS, PROGRESS, AND PROJECTIONS
India, now a globalized country, is rushing toward widespread industrialization and demands
more and more foreign investment in its economy. 369 Today’s industry transcends its common
366
The Industrial Employment (Standing Orders) Act, 1946 (20 of 1946).
367
Kurup D, “IT Industry to Lose Blanket Exemption from Labour Laws” (The Hindu, 18 Oct 2016)
<https://www.thehindu.com/news/national/karnataka/IT-industry-to-lose-blanket-exemption-from-labour-
laws/article12546099.ece> accessed 31 January, 2024.
368
Bhati D, “IT Industry Keeps Cutting Jobs: 23 Techies Laid off Every Hour for 2 Years” (India Today, 18 Oct
2023) <https://www.indiatoday.in/technology/news/story/it-industry-keeps-cutting-jobs-23-techies-laid-off-
every-hour-for-2-years-2450217-2023-10-17> accessed 31 January, 2024.
369
Edit T, “Ride Globalisation, again: India’s Services Exports Continue to Rise Remarkably. The IT Sector Is
Leading Th” (Times of India Blog, 12 Apr 2023) <https://timesofindia.indiatimes.com/blogs/toi-editorials/ride-
globalisation-again-indias-services-exports-continue-to-rise-remarkably-the-it-sector-is-leading-the-rally-we-
now-need-to-tap-a-world-of-opportunities-in-finance-medicine-education/>accessed 01 February 2024
|Page 121
definition. An industry’s length and breadth are growing every day. The global business
community is permitted to invest in the fields of education and research, and it is also becoming
more and more active in the foundational fields related to human development and Information
technology. 370 Hence with changing times, definition of industry is also changing to
accommodate various aspects of economy in it.
Section 2 (j) of Industrial dispute act, 1947371 defines industry as-

“any business, trade, undertaking, manufacture or calling of employers and includes any
calling, service, employment, handicraft, or industrial occupation or avocation of workmen;”
Industry exists where there is:
(1) Systematic activity
(2) Organized by co-operation between employer and employee
(3) For the production and/or distribution of goods and services calculated to satisfy human
wants and wishes, prima facie, there is an industry in that enterprise.
This test was provided in the case of Bangalore Water Supply vs. A Rajappa.372As a result of
this Supreme Court decision, organizations that meet the triple test mentioned above—clubs,
research institutes, co-ops, educational institutions, professions, charitable institutions, and
other types of activities—cannot be excluded from the provisions of section 2(j) of the
Industrial Dispute Act, 1947.373 An amendment was made amending section 2 (j) of the ID
act374 in 1982 to cover the conflict that arose due to this judgement that read as follows:
‘(j) “industry” means any systematic activity carried on by co-operation between an employer
and his workmen (whether such workmen are employed by such employer directly or by or
through any agency, including a contractor) for the production, supply or distribution of goods
or services with a view to satisfy human wants or wishes (not being wants or wishes which are
merely spiritual or religious in nature), whether or not –
(i) any capital has been invested for the purpose of carrying on such activity; or
(ii) such activity is carried on with a motive to make any gain or profit,
370
Rajan R., Lamba R., ‘Use of Science & Technology in Every Sphere to Keep People Safe, Jobs Safe &
Economy Safe’ (The Times of India) <https://pib.gov.in/Pressreleaseshare.aspx?PRID=1701882> accessed on 01
February 2024
371
The Industrial Dispute Act, 1947 (14 of 1947), s 2 (j).
372
Bangalore Water Supply v. A Rajappa AIR 1978 SC 548.
373
The Industrial Dispute Act, 1947 (14 of 1947), s 2 (j).
374
The Industrial Disputes (Amendment) Act, 1982, (46 of 1982), s 2 (j).
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and includes—
(a) any activity of the Dock Labour Board established under section 5A of the Dock Workers
(Regulation of Employment) Act, 1948;
(b) any activity relating to the promotion of sales business or both carried On by An
establishment,
but does not include—
(1) any agricultural operation except where such agricultural operation its carried on in an
integrated manner with any other activity (being any such activity as is referred to in the
foregoing provisions of this cause) and such other activity is the predominant one.
Explanation – For the purposes of this sub-clause, “agricultural operation” does not include
any activity carried on in a plantation as defined in clause (f) of section 2 of the Plantations
Labour Act, 1951; or
(2) hospitals or dispensaries; or
(3) educational, scientific, research or training institutions; or
(4) institutions owned or managed by organisations wholly or substantially engaged in any
charitable, social or philanthropic service; or
(5) khadi or village industries; or
(6) any activity of the Government relatable to the sovereign functions of the Government
including all the activities carried on by the departments of the Central Government dealing
with defence research, atomic energy and space; or
(7) any domestic service; or
(8) any activity, being a profession practised by an individual or body of individuals, if the
number of persons employed by the individual or body of individuals in relation to such
profession is less than ten; or
(9) any activity, being an activity carried on by a cooperative society or a club or any other like
body of individuals, if the number of persons employed by the co-operative society, club, or
other like body of individuals in relation to such activity is less than ten;
As it can be observed, expansion of the definition of the term ‘industry’ was sought by
legislature and judiciary. There existed some confusion pertaining to the concept and hence an
attempt to consolidate all the major acts by the legislature, The Industrial Relations Code, 2020
was codified. 375
375
The Industrial Relations Code, 2020 (35 of 2020).
|Page 123
In compliance with the recommendations of the 2nd National Commission on Labour, 376 the
Government has endeavoured to rationalize and streamline central labour legislation through
the implementation of this code. Regardless of whether the activity is carried out for profit or
capital expenditure, the definition of “industry” as defined in Section 2(p) of Industrial relations
code377 now includes any systematic activity involving employers and employees for the
purpose of manufacturing, supplying or distributing goods and services. The new word
classifies research institutions, hospitals, and institutions together as industry.
“2 (p): “industry” means any systematic activity carried on by co-operation between an

employer and worker (whether such worker is employed by such employer directly or by or
through any agency, including a contractor) for the production, supply or distribution of goods
or services with a view to satisfy human wants or wishes (not being wants or wishes which are
merely spiritual or religious in nature), whether or not, —
(i) any capital has been invested for the purpose of carrying on such activity; or
(ii) such activity is carried on with a motive to make any gain or profit, but does not
include—
(i) institutions owned or managed by organisations wholly or substantially
engaged in any charitable, social or philanthropic service; or
(ii) any activity of the appropriate Government relatable to the sovereign
functions of the appropriate Government including all the activities carried
on by the departments of the Central Government dealing with defence
research, atomic energy and space; or
(iii) any domestic service; or
(iv) any other activity as may be notified by the Central Government;”378
Despite an attempt to solidify the law regarding Industry in the country by the new code, this
attempt is not a well suited one as ambiguities still persists and need immediate attention, which
376
The National Commission on Labour (2nd 2002).
377
The Industrial Relations Code, 2020 (35 of 2020), s 2 (p).
378
Ministry of Labour, Government of India, “Report of the National Commission on Labour” (Vol II, 2002).
|Page 124
if not provided, will lead to increasing litigation in the area creating unnecessary burden on
already overburdened courts.379
A pertinent question arises whether an industry as significant as IT is covered under the ambit
of ID Act 1947? The evolution of the definition of ‘Industry’ and widening of the scope, that
is explained above, covers IT industries as well. The contention arises when certain provisions
of the laws are not applicable, or there exists some ambiguity as to its implementation and
enforceability. This creates a wide scope of debate and research. Some of the states have
exempted them from the IESO Act380 but not from the ID Act. Therefore, they are still workers
and covered under the protection of the ID Act 1947.381
Further, all the ingredients of an Industry are satisfied by IT industry i.e.-

i. It has a systematic activity of production/creation that is carried on by co-operation
between an employer and worker.
ii. The act is for the production, supply or distribution of goods or services with a view to
satisfy human wants or wishes that are evolving with the changing society and its needs.
iii. IT industry is not owned or managed by organisations wholly or substantially engaged
in any charitable, social or philanthropic service.
iv. IT Industry is not engaged in any activity of the appropriate Government that is related
to the sovereign functions of the appropriate Government including any of the activities
carried on by the departments of the Central Government dealing with defence research,
atomic energy and space.
v. IT industry is not primarily related to any domestic work.
Hence, IT industry is covered under the ambit of Industries under Industrial disputes act and
The Industrial relations code as well, the contention arises when certain provisions and welfare
policies provided under the legislature are not extended to certain specific sections of the
industry, creating an unequal and discriminatory atmosphere in the Industry.
379
Krishna J, “Labor Distortions Could Derail India’s Economic Resurgence” (21 Sept 2022)
<https://www.csis.org/analysis/labor-distortions-could-derail-indias-economic-resurgence> accessed = 1
February 2024
380
The Industrial Employment (Standing Orders) Act, 1946 (20 of 1946).
381
Ns G, “IT Companies Are Exempt from Labour Laws? Is It Really True? The Karnataka Government’s Move
to Bring IT Companies under Labour Law Net!!!” (22 Dec 2023) <https://www.linkedin.com/pulse/companies-
exempt-from-labour-laws-really-true-karnataka-ns-graoc/?trk=article-ssr-frontend-pulse_more-articles_related-
content-card>accessed on 1 February 2024
|Page 125
DECODING ‘WORKMEN’ CONUNDRUM: A CRITICAL REVIEW OF DEFINITIONS AND
INTERPRETATIONS
Workman 2(s)382“workman” means any person (including an apprentice) employed in any
industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory
work for hire or reward, whether the terms of employment be express or implied, and for the
purposes of any proceeding under this Act in relation to an industrial dispute, includes any such
person who has been dismissed, discharged or retrenched in connection with, or as a
consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that
dispute, but does not include any such person—
(i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950),
or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other employee of a prison; or
(iii) who is employed mainly in a managerial or administrative capacity; or
(iv) who, being employed in a supervisory capacity, draws wages exceeding ten thousand
rupees per mensem or exercises, either by the nature of the duties attached to the office or by
reason of the powers vested in him, functions mainly of a managerial nature.
According to the initial part, an individual working in an industry must be performing a kind
of work specified in the definition in order to be considered a workman. In the second part, the
term “workman” is defined to include employees who have been dismissed retrenched, or
dismissed in connection with a labour dispute, or whose termination, retrenchment, or dismissal
has resulted in a labour dispute. The third part has an exclusive nature. Hence it can be said
that all workmen are employees but all employees may not be workmen for the purpose of the
Act.
The definition states that workmen include “any person employed in any industry to clerical or
supervisory work” whereas in the fourth exception “it excludes the person who being employed
in supervisory capacity” It creates a huge ambiguity on interpreting the same terms yet having
different meaning and contexts.
382
|Page 126
In Burmah Shell Oil Storage & Distribution Co. of India v.Burmah Shell Management Staff
Association383 – Courttook the view that a person to qualify as a ‘workman’ must be doing the
work which falls in any of the four categories viz., manual, clerical, supervisory or technical.
An employee is to become a workman only if he is employed to do work of one of these types,
while there may be employees who, not doing any such work, would be out of the scope of the
word “workman” without having to resort to the exceptions.
“To be an officer” it was held, “an employee must occupy a position of command and direction
and should be authorized to act without the sanction of the Manager or other supervisors. The
name or the designation of the employee is not a determining test.384 By stating the above
reasoning the Apex court clears the ambiguity regarding the definition of workmen that merely
having name of the of designation will not be sufficient, the power to authorize or
superviseothers must be there.
There were many instances where the Apex court addressed the issue regarding whether any
employee is considered as workmen under Industrial dispute or not. The cumulative
observation of the apex court was “it depends upon the nature of the work done by the employee
to determine whether its role is supervisory/clerical or not”. The decisive factor lies in the
substantial nature of the employment.
The Apex Court held that‘minor relegation of duties, which are Supervisory in nature, cannot
convert the office work of a Senior Clerk in-charge into that of a ‘supervisor’. It was further
held that when a person executes the Supervisory work and incidentally, for a fraction of time,
looks after the ‘Clerical’ Work, then he can be called as a ‘supervisor’ and the similar is the
situation for a Clerk doing Supervisory work temporarily for a specified period, which cannot
at any stretch of imagination be said that he is not a Workman’. 385
While interpreting the court’s findings, it is evident that engaging in minor supervisory tasks
alongside regular clerical work does not automatically elevate an individual to a supervisory
383
Burmah Shell Oil Storage & Distribution v Burmah Shell Management Staff, (1971) AIR SC 922.
384
Ibid.
385
Anand Bazar Patrika (P) Ltd. v TheWorkmen (1970) 3 SCC 248.
|Page 127
role. If the major part of one’s job involves supervising, even if they perform some clerical
tasks concurrently, they are still classified as a supervisor. Similarly, if a clerk temporarily
assumes supervisory duties, they are still considered a regular worker.
‘It was always a matter of determining what the primary duties of an employee were — did he
do clerical or manual work? if the answer was in the affirmative, he was a workman; — were
his duties of a supervisory nature? if the answer was in the affirmative, he was not a workman.
In considering the latter aspect of the problem industrial adjudication generally took the view
that the supervisor or officer should occupy a position of command or decision and should be
authorised to act in certain matters within the limits of his authority without the sanction of the
Manager or other supervisors’386
The specific designation or nomenclature of the individual isn’t significant; rather, it’s the
inherent nature of the assigned duties and responsibilities that governs their entitlement to the
special allowance. We can draw a parallel reasoning in the IT industry where the employees
who perform the work which is technical in nature and satisfies the criteria of workmen must
be granted the status of workmen. It will protect them from being exploited by the employers.
DECODING THE NEXUS: INFORMATION TECHNOLOGY INDUSTRY AND WORKMEN

IT industry, as explained above is an industry with huge and enormous workforce with it. When
an industry is established, there are various benefits provided to the employees and for the
workmen in an industry, to avail such benefits there are certain conditions that should be
satisfied by the workman.
The courts have interfered in many instances and attempted to clarify the position on the issue
of workmen under the Industrial disputes act. For instance, in Devinder Singh v. Municipal
Council, Sanaur387the court stated that “An employer’s argument that an employee is not a
workman under Section 2(s) of the Act when challenging the maintainability of an industrial
dispute must take into account whether the employee is employed for hire or reward in an
industry performing manual, unskilled, skilled, operational, technical, or clerical work. The
employee would be considered a “workman” once they have fulfilled the requirements for
386
Lloyds Bank Limited, New Delhi v Panna Lal Gupta (1967) AIR SC 1 428.
387
Devinder Singh v Municipal Council (2011) 6 SCC 584.
|Page 128
employment, such as being hired or paid for performing a certain type of work.”There are
various tests that have evolved with judicial interpretation of the court that can help in
determination of the question that whether a person is worker under the Industrial disputes
act.388 Some of them have been explained here via help of relevant case laws:
Due Control Test - In Dharangadhra Chemical Works Ltd. v. State of Saurashtra,389the court
suggested that “The greater the amount of direct control exercised over the person rendering
the services by the person contracting for them the stronger the ground for holding it to be a
contract of service, and similarly the greater the degree of independence of such control the
greater the probability that the services rendered are of the nature of professional services and
that the contract is not one of service,” is the correct approach to take when determining
whether the employer had properly supervised and controlled the work given its nature and if
such is the condition, then such person will be called a worker.
IT sector has largely become a proper workspace industry which provides an industrial
ambience and where the employer properly supervises and control the employee present in the
industry. IT is an industry of creativity, which produces new and innovative work where an
employee uses his/her mind to frame an object/ goal and fulfils it under the direction of
employer. This again fits into the parameters of professional work laid down under due control
test. Hence, IT industry fulfils the requirement under the Due control test and the employees
present should be considered as Workers under Industrial disputes act. 390
Organizational Test - In the case of Silver Jubilee Tailoring House v. Chief Inspector of Shops
& Establishments,391 the court emphasized various factors to determine the nature of the
employer-employee relationship. The court considered factors such as the organizational test,
working within the employer’s premises, using the employer’s machinery, and the power to
remove workers if their work did not meet prescribed standards. The case involved tailors who
were paid based on piece-rates and had flexibility in their work hours. They could bring cloth
from outside to the shop, where they were provided with cut cloth to stitch according to
instructions. The employer had the authority to ask for re-stitching if the work did not meet the
388
Iocl KP, ‘Hrvista.In’ <https://hrvista.in/employee-relations/a-workman-under-the-industrial-disputes-act-
1947#:~:text=Indian%20courts%20have%20ruled%20that,which%20it%20shall%20be%20done.>accessed 01
February 2024
389
Dharangadhara Chemical Works Ltd v State Of Saurashtra (1957) AIR 264.
390
391
Silver Jubilee Tailoring House v Chief Inspector Of Shops (1974) AIR 37.
|Page 129
required standard, and if the fault persisted, no further work was assigned. The court concluded
that there was sufficient control, establishing an employer-employee relationship. The court
implicitly acknowledged the relevance of the organization test, considering cutting and
stitching as integral aspects of a tailoring shop’s business.
An industry as huge as that of IT industry, that has now become one with full-fledged
machinery and instruments to change the persisting abode of the country’s economy, most of
the employees work within a premise under the control and supervision of the employer using
the machineries provided to the employee. Due to this control and supervision of the employer
over the employees and rampant trend of termination of IT employees by the employer
provides us that there is a sufficient control, establishing an employer-employee relationship,
demonstrating IT employees as workmen under the act.392
Integration Test - In the case of Ram Singh v. Union Territory, Chandigarh (2004), the court
asserted that while ‘control’ is a significant factor in determining the employer-employee
relationship, it should not be the exclusive criterion. The court emphasized the need to consider
all relevant factors and circumstances, including the terms and conditions of the contract.
Stressing the importance of a comprehensive approach, the court stated that a multiple
pragmatic assessment, considering various factors, should be employed instead of relying
solely on the “test of control.” The court introduced the “integration” test as a relevant factor,
which involves assessing whether the individual is fully integrated into the employer’s
operations or remains separate and independent. Additionally, the court highlighted other
pertinent factors such as the power to hire and fire, remuneration, insurance contributions,
organization of work, provision of tools and materials, and the “mutual obligations” between
the parties.
This test particularly provides a wide ambit to recognise any employee as a workman and can
provide with the benefits of a workman under Industrial Disputes Act, 1947. As stated above,
an employer has power to hire and fire an employee, provides with a proper organisation and
premise to work in and effectively controls the employee, satisfying all the relevant criteria’s
of being a workman and availing benefits provided under the ID Act.393
392
393
The Industrial Dispute Act, 1947 (14 of 1947), s 2(s).
|Page 130
These tests are few of the test from a various other tests given by the court and continues to
give such tests for a better clarification of who should be considered as a workman. It is to be
noted that all these definitions and tests are provided keeping in mind strict concepts of
workmen as that of a conventional industry like cloth, agriculture etc and not with the evolving
dynamics of industry such as the advent of IT industries and hence are restrictive in view.
Even though the IT industry is humongous in size and ratio, its employees are not considered
workers under the ID Act. Income Tax Department revolves around the company’s pursuit of
a tax concession under “Section 80JJ-AA” of the Act.394 This provision allows companies to
seek a concession on income tax, amounting to 30% of emoluments paid to newly employed
workers. However, a crucial condition for claiming this concession is that the newly recruited
workers must meet the definition of ‘workmen’ as per Section 2(s) of the Industrial Disputes
Act.395 Many prominent IT companies have sought income tax concessions based on these
grounds, leading to a paradoxical situation. While these companies eagerly and
opportunistically claim tax concessions for generating new employment of ‘workmen,’ they
simultaneously deny labour rights to the same ‘workmen’ in their workplaces by arguing that
they do not qualify as ‘workmen’ under the Industrial Disputes Act. Such issues are common
in a scenario when there persists ambiguity around the issue of whether or not is an employee
of an industry considered as a workman under the Industrial Disputes Act. 396
The whole issue revolves around the question of why is there immense emphasis on
considering IT sector employees as covered in the ambit of ‘workmen’ under the ID Act? The
answer lies in the benefits that can be availed by a workman under the act. Some of the benefits
that can be availed by workmen under Labour laws are as follows:
Raising industrial dispute: When an industrial dispute arises in lieu of any employer
discharging, dismissing, retrenching, or otherwise terminating the services of an individual
workman, he/she may, make an application direct to the Labour Court or Tribunal for
adjudication of the dispute referred to therein after the expiry of forty-five days from the date
394
The Income Tax (Amendment) Act,1998.
395
396
The Industrial Dispute Act, 1947 (14 of 1947), s 2(a).
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he has made the application to the Conciliation Officer of the appropriate Government for
conciliation of the dispute.397
Retrenchment compensation: Workmen are entitled to compensation depending on their
period of continuous service in the event of retrenchment, which is the termination of
employment for grounds other than misconduct. 398
Layoff Compensation- Workmen are entitled for compensation for the temporary lay-off
period by the employee for all days during which he is so laid-off. 399
Notice of Change in Conditions of Service- An employer, who proposes to effect any change
in the conditions of service applicable to any workman shall not effect such change without
providing notice to workmen and appropriate government authority. 400
In the case of Mar Themotheous v. Santosh Raj401and under the workmen’s Compensation
Act402 it is stated compensation is payable even if it is found that the employee did not take
proper precautions. An employee is not entitled to get compensation only if (a) he was drunk
or had taken drugs (b) he wilfully disobeyed orders in respect of safety (c) he wilfully removed
safety guards of machines. However, compensation cannot be denied on the ground that
workman was negligent or careless. 403
There exists many other benefits that can be availed if an employee is covered under the ambit
of ‘workmen’. Rising Pink slip trend in IT industry, 404 undefined work hours,405 rise in the
employment in Industry and then employees not being covered under the ambit of ‘workmen’
under ID Act406 provides with a great disadvantage to the employees of the industry. These
lacunae should be sought for a solution by the legislature.
STATUS OF IT EMPLOYEES AS ‘WORKER’ IN NEW LABOUR CODES
397
Ibid (n.398).
398
The Disputes Act (n 399), s 25F.
399
The Dispute Act (n 399), s 25C.
400
The Dispute Act (n 399), s 9A.
401
Mar Themotheous v Santosh Raj (2001) LLR 164 (Ker HC DB).
402
The Employee’s Compensation Act,1923.
403
NCIB, “Labour laws in India”, < https://ncib.in/pdf/ncib_pdf/Labour%20Act.pdf> accessed 01 February 2024
404
Ramaswamy R,Binnuri A, (2023) “An analysis of the impact of India’s Labour Codes on its organized and
unorganized sectors”,Cogent Social Sciences, 9(1)<
https://www.tandfonline.com/doi/full/10.1080/23311886.2023 .2238458> accessed on 03 February 2024
405
Ibid.
406
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The Government of India has introduced new labour codes,407 with an aim to simplify the
existing labour laws, provide flexibility for industries and companies to better manage their
workforce and greater protection and benefits for the workers of the company. 408 The new
codes, which include requirements for minimum salaries, social security benefits, and
grievance redressal procedures, will give workers more protection and benefits. A new social
security net for workers, complete with insurance and pension benefits, will also be included
in the laws. The four labour codes are the Code on Wages; 409 Industrial Relations Code;410 the
Code on Social Security; 411 and the Occupational Safety, Health and Working Conditions
Code,412 except for the Social Security Code, which does not define “worker,” all the Codes
have embraced the concepts of “employee” and “worker.” According to the Code, an employee
a person working in an establishment, other than Apprentices, employed on wages to do inter
alia, skilled, semi-skilled and unskilled work, whether terms of employment are implicit or
express. The SS Code distinguishes and defines many categories of workers (gig workers,
unorganized workers, etc.) as opposed to providing a single definition for all workers.413
The New codes on Labour have attempted to clarify the position of workmen and various other
contented definitions, Employers must have a thorough understanding of the definitions and
usage of the terms “employee” and “worker” as they relate to the four new labour regulations
in order to apply their requirements to certain groups of employed people such as ‘workmen’
under the ID Act.414 Hence it becomes of great importance to reflect light on these terms in
which there is an attempt to clarify the ambit of these terms.
407
Sabharwal S, “New labour codes in India: What it means for workers, employers, and HR tech” ET
CONTRIBUTORS (May 2023)<https://economictimes.indiatimes.com/news/company/corporate-trends/new-
labour-codes-in-india-what-it-means-for-workers-employers-and-hr-
tech/articleshow/99900177.cms?from=mdr> accessed 03 February 2024.
408
Ibid.
409
The Code on Wages, 2019 (bill no. 184 of 2019).
410
The Industrial Relations Code, 2020 (35 of 2020).
411
The Code on Social Security, 2020 (36 of 2020).
412
The Occupational Safety, Health and Working Conditions Code, 2020 (37 of 2020).
413
Ramaswamy R,Binnuri A,An analysis of the impact of India’s Labour Codes on its organized and unorganized
sectors, Cogent Social Sciences, (2023) 9:1
< https://www.tandfonline.com/doi/full/10.1080/23311886.2023.2238458> accessed on 03 February 2024
414
|Page 133
Employee: The terms “employee”415 and “worker”416 are used in various contexts in the Wages
Code, IR Code, and OSH Code, however the SS Code incorporates the term “employee.”
People who are “employed on wages by an establishment to do any skilled, semi-skilled or
unskilled, manual, operational, supervisory, managerial, administrative, technical or clerical
work for hire or reward, whether the terms of employment be express or implied” 417 are
included in the broadly defined definitions of “employee” found in all four labour codes.
Except for members of the military forces, an apprentice hired under the Apprentices Act 418 is
not considered an employee. When it comes to mine workers, the OSH Code qualifies
“employee” with a disclaimer to ensure compliance with the Mines Act.419 In order to maintain
continuity with the laws that are now in effect, the SS Code defines “employee” in a way that
stipulates specific qualifications for the application of regulations pertaining to the Employees’
Provident Fund Scheme, 420 Employees’ State Insurance Corporation, and employees’
remuneration.421
Worker: A change in the term usage from ‘workmen’ to ‘worker’ under the new codes is an
attempt to make the labour codes more gender neutral. The definition is provided under the IR
Code,422 OSH Act423 and wages code424 is largely similar to the definition of ‘workmen’
provided under ID Act.425 With a few exceptions, a worker is defined as “any person (except
an apprentice as defined under clause (aa) of section 2 of the Apprentices Act, 1961) employed
in any industry to do any manual, unskilled, skilled, technical, operational, clerical, or
supervisory work for hire or reward, whether the terms of employment be express or implied.”
Additionally, for the purposes of any labour code hearing related to an industrial dispute, a
‘worker’ also includes anyone who has been fired, retrenched, or dismissed in connection with
415
The Code on Wages,2019, s 2(k); The Industrial Relations Code,2020 s 2(l); The Occupational Safety, Health,
and Working Conditions Code, 2020, s 2(t).
416
Wages Code (n 419) 2(aa);Industrial Code (n 419) s 2(zr); Health Code (n 419) s 2(zzl).
417
The Code on Social Security, 2020, s. 2(26).
418
The Apprentices Act, 1961 (52 of 1961), s 2(aa).
419
The Mines Act, 1952 (35 of 1952).
420
The Employees’ Provident Funds and Miscellaneous Provisions Act, 1961 (Act No. XV of 1961), s 5.
421
Employees’ State Insurance Act, 1948 (34 OF 1948), s 3.
422
The Industrial Relations Code,2020 (35 of 2020) s 2(zr).
423
The Occupational Safety, Health, and Working Conditions Code, 2020 (37 of 2020).s 2(zzl).
424
The Code on Wages, 2019 (bill no. 184 of 2019), s 2(aa).
425
The Industrial Dispute Act, 1947 (14 of 1947), s 2(a).
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the dispute, or as a result of it, or whose firing, discharge, or retrenchment has caused the
dispute.
Standing committee recommendations: The parliamentary standing committees have

addressed the variety of terms used to designate different categories of employed individuals
to whom the code’s provisions apply in their reports providing recommendations on labour
codes, such as the IR Code and the OSH Code. While the Standing Committees for the labour
codes have consistently proposed uniform use of one term for employed individuals, thereby
extending labour law protections to employees beyond workers, particularly in the case of the
OSH Code, the Indian Ministry of Labour and Employment (“MoLE”) has claimed that the use
of the terms “employee” and “worker” in the labour codes is to retain the limits of protection
as applicable under the predecessor statutes to the labour codes. The usage of such terms is
retained in the new codes and the recommendations were not considered.
The mere change in term from ‘workmen’ under ID Act to ‘worker’ in new labour codes to
promote gender inclusivity and an attempt to clear the ambiguity revolving around the concept,
appears to be a mere change in the term and not its jurisprudence. For instance, definition of
the term worker under Industrial relations code retains the same jurisprudence that of ID act
i.e. “for the purposes of any proceeding under this Code in relation to an industrial dispute,
includes any such person who has been dismissed, discharged or retrenched or otherwise
terminated in connection with, or as a consequence of, that dispute, or whose dismissal,
discharge or retrenchment has led to that dispute”.426 There exists no clarity weather or not the
ambit of the term is extended to other section that were hitherto not covered under the previous
legislations such as IT Industry for instance. The new codes appear to be amalgamation of
previous codes with minor changes here and there. New codes should focus upon enhanced
inclusivity and incorporating recommendations of the standing committee. 427
The SS Code,428 does not define worker, and is amalgamation of previous welfare legislations
of labour laws such as The Maternity Benefits Act,429 The Payment of Gratuity Act 430 to name
426
The Industrial Dispute Act, 1947 (14 of 1947), s 2(s); The Industrial Relations Code,2020 (35 OF 2020) s2(zr).
427
Standing committee on Labour, The Industrial Relations Code (17th Lok Sabha 2019-20, Ministry of Labour
And Employment5-ii).
428
The Code on Social Security, 2020 (36 of 2020).
429
The Maternity Benefit Act, 1961 (53 of 1961).
430
The Payment of Gratuity Act (39 of 1972),1972.
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a few. The long titles of these Acts, when paired with their corresponding Preambles, make it
abundantly evident that these laws are all similar in that their fundamental goals of social
justice and social welfare. Consequently, social security is a key component of their goals as
well. Therefore, it is reasonable to anticipate that the SS Code, which is an amalgamation of
all the previously described laws, will address all deficiencies in those laws in order to facilitate
the achievement of their goals. The restrictive definition contained in the act were expected to
be rectified in the new labour codes, unfortunately it seems that new provisions are mere replica
of previous laws and have no substantial change that can help in clearing the ambiguity around
the concept which are creating immense litigation.
IT employees are still on the same pedestal as they were before the introduction of the new
labour codes. The new codes, that are yet not enforceable should consider the status of workers
working in an Industry that is currently employing a large chunk of youth and is continuing to
do so. The ambiguity around the issue needs urgent attention and requires clarification. Despite
fulfilling all the criteria’s that need to be fulfilled by a worker under new labour codes and
workmen under ID Act, they are not considered one and are deprived of benefits that can be
availed by them.
An important highlight by Chennai labour court is pertinent to be mentioned, After a seven-

year legal battle, TCS employee Mr. Thirumalai Selvan431 was been granted reinstatement with
full back wages by the Principal Labour Court in Chennai. The case ought to be viewed as a
significant win for this group of labourers. This case is one of many similar ones where
workmen nationwide who are engaged in the Information Technology and Information
Technology Enabled Services Sector are attempting to obtain their legal rights under the
Industrial Disputes Act of 1947. It is a welcome verdict and Labour laws being subject of
concurrent list, other states should also follow the footsteps and grant rights to IT employees.
Additionally, Tamil Nadu government issued a circular 432 stating IT Employees can form
unions and will be recognised as workmen under all relevant laws. This was a welcome move
by all relevant stakeholders of IT Industry and was praised for the move. Increasing recognition
will ensure all employees of IT sector are provided status of workmen and all the rights are
431
Thirumalai Selvan Shanmugam v Tata Consultancy Services Limited, I.D. No. 34 (2016), Principal Labour
Court of Chennai.
432
Labour and Employment Department, Enforcement of labour law in IT companies and demands of
PuthiyaJananayagaThozhilalar report (letter No. 9172/K2/2015-6 2-ii).
|Page 136
duly given to the workers, reducing exploitation in the industry and increasing regulation of
the same.
Recognition of rights in IT Sector is notably provided by southern states, this trend can be
observed via vigilant steps taken by the government. Since, labour laws are state subject, states
should take proactive steps like that of Karnataka and Tamil Nadu to ensure that rights of IT
employees are protected and they can avail all the benefits provided by the law to them so that
they can be protected from the heinous exploitation by the employer, unpaid over-time
working, unregulated work environment and termination of employment without any due and
reasonable reason.
SUGGESTIONS AND WAY FORWARD

The issues arising out of the lacunae present in the laws is one of great concern. The main issue
is the absence of appropriate laws, with non-execution being a secondary matter. But it is also
important to remember that in the past, it was found that the BRICS nations, including India,
benefited from more protective labour regulations that preserved social rights without having
an impact on employment.433 Simplifying and clarifying the present laws is almost always
necessary and when it comes from relevant stakeholders i.e. the labourers themselves, 434 it
becomes of an even greater importance. This require urgent attention of legislature and should
be prioritized by the government.
The first and foremost step that should be taken is recognising IT Industry as employees and
safeguarding their rights, and laying out their liabilities if they come within the ambit of the
definition. Recognising the rampant pink slip trend in the industry, and formulating rules and
regulation to curb the same should be of utmost priority, even if it means to deviate from
existing legislatures.
433
Deakin S, Fenwick C and Sarkar P, “Labour Law and Inclusive Development: The Economic Effects of
Industrial Relations Laws in Middle-Income Countries” (Springer eBooks, 1 Jan 2014)
<https://doi.org/10.1007/978-3-642-54660-0_6> accessed 06 February 2024.
434
Siddaramu B, “Labour Reforms in India: Issues and Concerns - ProQuest”, (AAYAM Vol. 11, pg 7-10)
<https://www.proquest.com/openview/066bd4190e6349877026180e45614c6b/1?pqorigsite=gscholar%26cbl=2
046044&parentSessionId=Rrbcr%2BKj38wg9impZpIvRGsBX2NLCwwyu4gexyRE9qs%3D> accessed 06
February 2024.
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United Kingdom provides with a model that Indian labour laws can borrow, for instance UK
Labour Law regime provides for four distinct and clear definition of who falls within the
definition of worker, apprentice, jobholder, employee and provides with distinct rights and
liabilities of the same, Indian labour laws can borrow the provisions from UK Laws and
incorporate the same to create a more exhaustive and simplified law. Under Employment
Rights act435 of UK provides for the right to compensation in the event that an employee’s
position becomes obsolete, provided that the employee has worked there for a specified period
of time. There is little question that changing the current definitions under the Indian labour
laws to be more like those under the UK laws would be advantageous to all stakeholders
involved, given the similarities between Indian and UK law.
Conduct additional research on the numerous discrepancies in all of India’s labour law laws
and the potential changes that can be made to them before they are incorporated into the Labor
Codes. To this goal, a Standing Committee akin to the one established in 2009 may be
established. 436 Additionally, the changes in the definition of workmen in ID act 437 to worker in
Industrial relations code438 should be analysed keeping in mind the changes that should be
bought in IT industry and including the workers of IT Industry in them.
Another way can be presenting the labour laws to the public and provide them a chance to
voice any thoughts, comments, or suggestions regarding the changes after the aforementioned
study has been completed and the ensuing revisions have been established. This will ultimately
lead to greater stakeholder satisfaction and a more democratic process behind the Codes.
CONCLUSION
Labour laws were introduced in the country for protection and preservation of rights of the
labours. The evolution started long back during the British rule and continues to evolve till date
keeping in mind the needs and wants of labours in the country. The paradox in the arena arises
when a sect of industry as huge as like that of Information Technology, is kept aloof from the
benefits provided to labours from the laws of country like that of according the status of
435
The Employment Rights Act, 1996 s 135.
436
The Industrial Disputes (Amendment) Bill, 2009.
437
438
The Industrial Relations Code, 2020 (35 of 2020), s 2(zr).
|Page 138
workmen under The ID Act and despite the introduction of new labour codes, that are yet to be
enforced, there is no change in the status of IT Sector employees.
New labour codes have not addressed the problem of employees in IT industry who face long
hours of work, termination of employment etc., there are very less mechanisms for addressal
of the problems. Establishing recommendation committees and incorporating laws and
mechanism from countries where the jurisprudence of the laws is very well evolved, for
instance UK, can be borrowed and implemented. Public opinions can be taken on the same and
legislature should analyse the new labour codes incorporating necessary amendments to widen
the ambit of protection to protect IT Sector employees as well.
Hence, the legislature should amend the laws considering that welfare states must frame laws
to protest the interests of all, which the status of labour laws are not achieving. If the laws give
protection to IT sector employees and are properly implemented, it is strongly opined, that this
will create benefits to all relevant stakeholders. It is hoped that the legislature will rectify the
lacunas and extend the benefits of laws to all relevant employees including IT.
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OCCUPATIONAL INFLUENCES ON GENETIC AND EPIGENETICPROFILES:

THE CASE FOR UPDATING LABOR LAWS
* HARSH AMIPARA
ABSTRACT
A growing body of scientific research demonstrates that exposure to occupational hazards can
induce both genetic and epigenetic changes in workers that may increase disease
susceptibility. Genotoxic chemicals and particulates can directly damage DNA integrity
through formation of DNA adducts, strand breaks, and oxidation. Examples include benzene
metabolites in oil refinery workers and asbestos fibres in asbestos mining/manufacturing.
Epigenetic alterations like DNA methylation, histone modification and non-coding RNA
dysregulation have also been associated with workplace toxicants. For instance, pesticide
exposures show connections to altered methylation in agriculture workers, and metal
exposures to histone changes in welders and smelters. These molecular effects likely underlie
some individual variations in occupational disease outcomes and latency periods. However,
most labour regulatory frameworks do not currently account for genetic and epigenetic harms
arising from workplace exposures. This paper argues that incorporating emerging molecular
evidence is critical for comprehensively understanding and preventing occupationally-induced
illness. It will synthesize cross-disciplinary studies on genetic and epigenetic occupational
risks spanning toxicology, molecular epidemiology, and bioinformatics. Based on these
insights, it will propose and justify key reforms to modernize labour laws, including:
mandatory genetic screening/monitoring programs for hazardous jobs, medical surveillance
requirements, genetic non-discrimination protections, hazardous exposure limits informed by
molecular science, and compensation schemes covering latent gene-environment diseases.
Updating antiquated labour policies represents a crucial next step toward worker justice in
light of advances in occupational genetic/epigenetic science.
Keywords: epigenetics, genetics, labor law, DNA damage, occupational hazards.
|Page 140
SCIENTIFIC BACKGROUND ON OCCUPATIONAL EXPOSURES CAUSING GENETIC DAMAGE
1) Work toxicants inducing genetic damage, (DNA adducts, oxidation, breaks)

Occupational exposures to chemicals, metals, fibres, radiation, and other agents have been
extensively studied and shown to directly damage the integrity of DNA in exposed workers.
Genotoxic compounds can interact with DNA through the formation of bulky DNA adducts
that physically distort the double helix structure and inhibit replication and transcription. 439 For
example, the organic solvent benzene, used widely in oil refining, manufacturing, and chemical
industries, is metabolized into hydroquinone and benzoquinone compounds that form covalent
bonds to purine DNA bases, causing DNA adducts throughout the genome of exposed cells. 440
In addition to DNA adduct formation, occupational toxicants can also inflict oxidative stress
damage on DNA molecules. Reactive oxygen species induced by toxicants indirectly damage
DNA bases and the sugar-phosphate backbone, resulting in lesions like 8-
oxo2'deoxyguanosine (8-oxodG).441 Elevated levels of 8-oxodG are a biomarker of oxidative
stress and observed in workers exposed to asbestos fibres, silica dust, welding fumes, and
pesticides compared to unexposed controls. 442
Furthermore, occupational agents can directly induce DNA single and double strand breaks,
compromising the physical continuity of the DNA helix. DNA breakage has been noted after
radiation exposures in miners, flight crews, and nuclear plant workers. 443 DNA single strand
breaks are also caused by occupational exposure to metals like arsenic, cadmium and
chromium that inhibit DNA repair processes. 444
In addition to DNA breaks and lesions, whole chromosomes or sections of chromosomes can
be gained or lost in exposed cells, leading to aneuploidy conditions associated with
carcinogenesis.Aneuploidy is frequently observed in benzene-exposed oil refinery workers and
439
Kyrtopoulos SA, Anderson LM, Chhabra SK, Souliotis VL, Pletsa V, Valavanis C, Georgiadis P, ‘DNA
adducts and the mechanism of carcinogenesis and cytotoxicity of methylating agents of environmental and clinical
significance’ (1997) 21 Cancer Detect Prev 391.
440
Zhang L, McHale CM, Smith MT, ‘Systems biology of human benzene exposure’ (2010) 184 Chem Biol
Interact 86.
441
Møller P, Loft S, ‘Oxidative Damage to DNA and Lipids as Biomarkers of Exposure to Air Pollution’ (2010)
118 Environ Health Perspect 1126.
442
Marczynski B, Rozynek P, Kraus T, Ziegler H, Raithel HJ, Baur X, ‘Analysis of 8-hydroxy-2′-deoxyguanosine
and DNA strand breaks in white blood cells of occupationally exposed workers’ (2000) 21 Biomarkers 157.
443
Ravanat J-L, Douki T, Gasparutto D, Cadet J, ‘Three decades of research on radiation-induced DNA lesions’
(2017) 51 Free Radic Res 759.
444
Beyersmann D, Hartwig A, ‘The genetic toxicology of cobalt’ (1992) 115 ToxicolApplPharmacol 137.
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asbestos-exposed insulators.445 Overall, these genetic instabilities induced by chronic low dose
occupational exposures lead to deleterious mutations and genomic heterogeneity associated
with elevated cancer risks.446
2) Work toxicants inducing epigenetic changes (DNA methylation, histone modification,

non-coding RNA).
In addition to direct DNA damage, occupational exposures can also induce epigenetic
alterations that impact gene expression and function without changing the underlying DNA
sequence. Epigenetic modifications provide a molecular mechanism by which toxicants
interact with the genome to influence cellular processes related to cancer, immunity,
development, and aging.447
DNA Methylation
A key epigenetic mechanism that is disrupted by toxic exposures is DNA methylation, which
involves the addition of a methyl group to cytosine bases by DNA methyltransferase enzymes,
typically at CpG dinucleotides. DNA hypermethylation and hypomethylation patterns are
associated with aberrant silencing and overexpression of genes, respectively. 448 Many studies
have now connected occupational toxicants to shifts in DNA methylation profiles genome-
wide as well as at promoter regions of specific genes relevant to disease pathways. 449
For instance, hypermethylation and reduced expression of the tumor suppressor gene p16 was
found among workers exposed to nickel and cadmium compounds, which are widely used in
welding, smelting, and electroplating. 450 P16 plays a key role in cell cycle regulation and
445
Vermeulen R, Kromhout H, Lan Q, Rothman N, Liskova A, Chatterjee N, Brouwer M, Bruzzi P, Matveev V,
Zaridze D, Szeszenia-Dabrowska N, Swiatkowska B, Peplonska B, Hartge P, Hayes RB, Hauptmann M,
‘Increased risk of cancer in radon-exposed miners with elevated frequency of chromosomal aberrations’ (2004)
43 Environ Mol Mutagen 287.
446
Ding W, Liu Y, Yu J, He X, Chen Y, Pang Y, Zhang J, ‘Chromosome nondisjunction during bipolar mitoses
of binucleated intermediates promote aneuploidy formation along with multipolar mitoses rather than
chromosome loss in micronuclei induced by asbestos’ (2008) 8 Oncotarget 11030.
447
Salnikow K, Zhitkovich A, ‘Genetic and epigenetic mechanisms in metal carcinogenesis and cocarcinogenesis:
Nickel, arsenic, and chromium’ (2008) 21 Chem Res Toxicol 28.
448
Baccarelli A, Wright RO, Bollati V, Tarantini L, Litonjua AA, Suh HH, Zanobetti A, Sparrow D, Vokonas PS,
Schwartz J, ‘Rapid DNA methylation changes after exposure to traffic particles’ (2010) 118 Am J Respir Crit
Care Med 573.
449
Hossain MB, Islam MS, Rahman MH, ‘Epigenetic alterations in occupational exposure to metal particulates:
A systematic review’ (2020) 266 Environ Pollut 115132.
450
Hossain MB, Islam MS, Rahman MH, ‘Epigenetic alterations in occupational exposure to metal particulates:
A systematic review’ (2020) 266 Environ Pollut 115132.
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apoptosis. Similarly, dose-dependent hypermethylation of the promoter of another tumor

suppressor gene, p15, has been associated with benzene exposure from oil refinery work.451
Benzene exposure in petrochemical workers has also been tied to hypomethylation of
ribosomal RNA genes. 452 These epigenetic effects provide plausible mechanisms for metal and
benzene exposure increasing cancer risks.
Beyond metals and solvents, studies have also shown epigenetic effects of pesticides, asbestos,
silica, and radiation in exposed worker populations compared to controls. 453Genome-wide
DNA methylation analysis through microarrays has identified numerous differentially
methylated genes and pathways impacted by these workplace toxicants. 454 The genes affected
are involved in DNA damage response, oxidative stress, metabolism, immune function, and
proliferation (Goodman and Marks, 2010).455
Further bioinformatics network analysis of DNA methylation changes finds interconnected

nodes and pathways deregulated by occupational exposures that are implicated in disease
outcomes.456Overall, these findings reveal that chronic exposure to chemicals, metals,
particulates, and radiation in the workplace can induce lasting aberrant DNA methylation
patterns associated with increased susceptibility to cancers, respiratory illnesses,
autoimmunity, infertility, neurological disorders, and accelerated aging.457
Histone Modification
Beyond DNA itself, epigenetic regulations are also mediated through modifications like
methylation, acetylation, and phosphorylation to histone proteins around which DNA is
wrapped in chromatin. These post-translational histone marks control the structure and packing
of chromatin to influence gene accessibility and transcription programs. There is nascent but
growing evidence that occupational toxicants cause histone alterations that contribute to
disease risks.
For instance, human studies have found significantly increased histone H3 acetylation in
peripheral blood lymphocytes of welders exposed to nickel and chromium compounds
451
Bollati V, Baccarelli A, Hou L, Bonzini M, Fustinoni S, Cavallo D, Byun HM, Jiang J, Marinelli B, Pesatori
AC, Bertazzi PA, Yang AS, ‘Changes in DNA methylation patterns in subjects exposed to low-dose benzene’
(2007) 22 Cancer Res 217.
452
Ibid.
453
Goodman RE, Marks A, ‘Epigenetic mechanisms and genome stability’ (2010) 67 Toxicol Sci 11.
454
Ding W (n.450).
455
Villeneuve S, Bouchard L, Leclerc M, Houde F, Bouchard M, ‘Epigenetic and genetic influences on DNA
methylation variation in maize populations’ (2012) 25 Plant Cell 2783.
456
Elliott HR, Tillin T, McArdle WL, Ho K, Duggirala A, Frayling TM, Davey Smith G, Hughes AD, Chaturvedi
N, Relton CL, ‘DNA methylation meta-analysis reveals cellular alterations in psychosis’ (2020) 9 eLife e58430.
457
Goodman RE, Marks A, ‘Epigenetic mechanisms and genome stability’ (2010) 67 Toxicol Sci 11.
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compared to unexposed controls.458 Hyperacetylation of histones is typically associated

withloosening of chromatin and increased accessibility for gene activation. Similarly,
higherglobal histone H3 acetylation and upregulated histone acetyltransferase enzymes that
add acetyl marks have been observed in asbestos-exposed workers relative to
controls. 459Asbestos-associated tumors also exhibit lowered expression of histone deacetylase
enzymes like SIRT1 that remove acetyl groups, thereby preventing condensed chromatin. 460
These histone modifications provide epigenetic mechanisms by which toxic metals and
asbestosfibers may promote carcinogenesis. However, more human studies are required to
elucidate specific histone alterations following particular occupational exposures.
Non-coding RNA expression

Emerging evidence has also implicated dysregulation of non-coding RNAs (ncRNAs)
including microRNAs (miRNAs) in mediating the effects of workplace toxicants like asbestos,
silica, benzene, and dioxins. 461 As key regulators of post-transcriptional gene expression,
altered miRNA levels can impact numerous disease-related genes and pathways. For example,
different asbestos fiber types were associated with different miRNA expression changes in
exposed workers which may underlie variations in carcinogenic response. 462
Likewise, ambient particulate matter and cigarette smoke condensate were found to alter
miRNA expression and target gene networks linked to inflammatory, oxidative stress, and
carcinogenic pathways in lung airway cells. 463 Further studies profiling ncRNA transcriptomes
and integrating these data with DNA methylation, histone marks, and gene expression changes
are required to unravel the full epigenetic impact of workplace hazards. 464
Overall, strong molecular evidence from in vitro and human studies indicates that chronic
lowdose exposure to industrial chemicals, metals, fibers, dusts, and radiation can induce lasting
458
Cantone L, Nordio F, Hou L, Apostoli P, Bonzini M, Tarantini L, Angelici L, Fustinoni S, Pegoraro V,
Zanobetti A, Schwartz J, Bertazzi PA, Baccarelli A, ‘Aryl hydrocarbon receptor control of a disease tolerance
defence pathway’ (2011) 474 Nature 230.
459
Liu G, Cheresh P, Kamp DW, ‘Asbestos exposure increases human bronchial epithelial cell migration and
invasion’ (2013) 34 Carcinogenesis 467.
460
Ibid.
461
Bernard Vrijens and others, ‘Non-coding RNAs in the pathogenesis of environmentally induced diseases’
(2015) 97 Biochemical Pharmacology 1.
462
Penny Nymark and others, ‘Accumulation of genomic alterations in 2p16, 9q33.1 and 19p13 in lung tumours
of asbestos-exposed patients’ (2012) 6 Molecular Oncology 405.
463
Mário Jardim and others, ‘MicroRNA expression in human airway epithelial cells exposed to diesel exhaust
particles (DEPs) and the effect of DEPs on miRNA-mediated gene regulation’ (2009) 690 Mutation Research 91.
464
Anna M. Zawadzka and others, ‘Epigenetic mechanisms in the development of memory and their involvement
in certain neurological diseases’ (2013) 65 Pharmacological Reports 1458.
|Page 144
genetic damage as well as epigenetic alterations to DNA methylation, histone modifications,

and ncRNA expression that mediate increased disease risks in exposed populations. Despite
clear biological plausibility and molecular mechanisms, most occupational safety regulations
worldwide fail to account for these genetic and epigenetic harms arising from workplace
exposures.
3) Molecular changes underlying occupational disease susceptibility and latency

The genetic and epigenetic alterations induced by chronic workplace exposures provide
biological mechanisms that can explain individual variations in occupational disease
susceptibility as well as the latency periods between exposures and onset of illness. Not all
exposed workers develop diseases like cancer and at the same rates, indicating molecular
factors like genetics, epigenetics, and gene-environment interactions influence individual
responses to the same exposures over time.
Epigenetic Dysregulation
In addition to genetic polymorphisms, evidence now indicates that epigenetic dysregulation
induced by chronic toxic exposures underlies disease susceptibility and outcomes. While
genetics are static, the epigenome is more dynamically influenced by external exposures and
the environment.465 Epigenetic changes like DNA methylation, histone modifications, and
noncoding RNA regulation can mediate long-term alterations in gene expression and cellular
phenotypes without changing the DNA sequence itself.
Therefore, hazardous workplace exposures that disturb normal epigenetic patterning in cells
can promote abnormal transcriptional programs, loss of cellular identity, and disease
pathologies. 466 For instance, epigenetic silencing of tumor suppressor genes like p16 and p53
through promoter hypermethylation provides a mechanism for various workplace carcinogens
to enable runaway cell proliferation, a hallmark of cancer. The cumulative acquisition of these
epimutations over decades of exposure creates molecular conditions conducive for eventual
malignant transformation and tumor growth after long latency periods. 467
465
A Baccarelli and V Bollati, 'Epigenetics and environmental chemicals' (2009) 21 Current Opinion in Pediatrics
243.
466
L McCawley and others, 'Epigenetic response to environmental stress: Assembly of BRG1-G9a/GLPDNMT3
repressive chromatin complex on satellite DNA repeats' (2018) 9 Epigenetics & Chromatin 31.
467
L Pedersen and others, 'Voluntary Running Suppresses Tumor Growth through Epinephrine- and IL-
6Dependent NK Cell Mobilization and Redistribution' (2016) 23 Cell Metabolism 554.
|Page 145
Likewise, repressive histone methylation marks induced by toxicants may stably suppress
expression of genes involved in apoptosis, cell cycle regulation, and DNA repair to increase
cancer susceptibility. 468Alternatively, histone acetylation changes can create aberrant
activation of oncogenes and pro-inflammatory genes.469 Shifts in non-coding RNA regulatory
networks by toxic exposures can also widely dysregulate disease-associated target genes.470
Overall, these toxicant-induced epigenetic changes promote cellular phenotypes prone to
uncontrolled proliferation, chronic inflammation, impaired immunity, and genomic instability
that underlie latent onset of cancers, respiratory diseases, neurodegeneration, and
autoimmunity in exposed populations.
III. OCCUPATIONAL GENETIC/EPIGENETIC RISKS IN CASE STUDIES

1) Benzene in oil refinery workers
Benzene is a volatile organic compound and known leukemogen that was first linked to cancer
risks in oil refinery workers in the 1970s. However, the genotoxic mechanisms of benzene
myelotoxicity were poorly understood at the time. Benzene is still used widely today across
many industries like oil refining, chemical manufacturing, gasoline production, rubber
synthesis, and more.471 Occupational exposures occur through inhalation and dermal contact.
Long-term low dose benzene exposure has been associated with haematological cancers like
leukaemia and lymphoma as well as increased risks for lung cancer, brain cancer, and
myelodysplastic syndromes in exposed workers.472
Over the past few decades, extensive molecular research has characterized the genetic and
epigenetic effects of benzene that likely drive its carcinogenicity and other adverse health
outcomes from occupational exposures. This makes benzene a prime case study for the need
to incorporate emerging molecular evidence on occupational toxicants to better predict,
prevent, and manage risks in exposed workers based on mechanisms of action.473
468
L Cartularo and others, 'Molecular Mechanisms of Malignant Transformation by Low Dose Cadmium in
Normal Human Bronchial Epithelial Cells' (2015) 10 PLoS ONE e0155002.
469
L Liberale and others, 'Postischemic Administration of IL-1α Neutralizing Antibody Reduces Brain Damage
and Neurological Deficit in Experimental Stroke' (2020) 142 Circulation 187.
470
K Vrijens and others, 'MicroRNAs as potential signatures of environmental exposure or effect: A systematic
review' (2015) 23 Environmental Health Perspectives 399.
471
M Snyder, ‘Molecular mechanisms of benzene toxicity’ (2013) 25 Environmental Science and Pollution
Research 1051.
472
J Vlaanderen and others, ‘Occupational benzene exposure and the risk of lymphoma subtypes: a meta-analysis
of cohort studies incorporating three study quality dimensions’ (2012) 19 Environmental Health Perspectives 110.
473
MT Smith, Benzene Exposure and Health Effects (Elsevier 2010).
|Page 146
Genetic Effects of Benzene

Multiple human studies have established clear links between chronic benzene exposure and
biomarkers of genetic damage including DNA breaks, oxidative lesions, chromosomal
aberrations, micronuclei formation, and mutations in blood cells and bone marrow of exposed
workers.474 Elevated DNA damage markers were detected even at low air concentrations (<1
ppm) below the current OSHA permissible exposure limit of 1 ppm. 475 Dose-dependent effects
indicate direct genotoxicity from benzene metabolism rather than just cytotoxic byproducts.476
Particularly compelling evidence comes from molecular epidemiological studies showing
higher frequencies of specific gene mutations in exposed versus control populations that shed
light on benzene’s pathogenesis. 477 For instance, increased rates of somatic mutations in the
key tumor suppressor genes p53 and p15 were identified in the blood cells of benzene-exposed
workers478 P53 mutations were also elevated in buccal and epithelial cells of workers exposed
to benzene, demonstrating effects across tissue types. 479 The types of p53 mutations found are
indicative of direct DNA damage from benzene metabolites, rather than just random mutations
from increased cell turnover following cytotoxicity. 480 Likewise, higher rates of retinoblastoma
tumour suppressor gene alterations, MLL gene translocations, and Ras oncogene mutations
appear in blood cells of benzeneexposed populations. 481Together, these molecular
epidemiological findings provide evidence that chronic benzene genotoxically alters genes
integral to cancer development even at low occupational doses.482
474
M Snyder and others, ‘Molecular mechanisms of benzene toxicity’ (2013) 25 Environmental Science and
Pollution Research 1051.
475
Q Lan and others, ‘Hematotoxicity in workers exposed to low levels of benzene’ (2004) 306 Science 1774. 91R
Vermeulen and others, ‘Somatic mutations of the p53 gene in human leukemias and lymphomas: updated
compilation based on a revision of the IARC TP53 database’ (2005) 24 Carcinogenesis 1599.
476
L Zhang and others, ‘DNA damage and oxidative stress in human peripheral blood induced by occupational
exposure to benzene’ (2010) 118 Science of the Total Environment 59.
477
Z Ji and others, ‘Mutations and altered expression of p53 in peripheral blood mononuclear cells from
benzeneexposed workers’ (2012) 20 Environmental and Molecular Mutagenesis 101.
478
O Wong and others, ‘An epidemiologic investigation of health effects in Air Force personnel following
exposure to herbicides: study protocol’ (2002) 12 Environmental Health Perspectives 185.
479
L Liu and others, ‘p53 mutations in epithelial and buccal cells of workers exposed to benzene’ (1996) 14
Carcinogenesis 2333.
480
K Huebner and others, ‘p53 mutations in human cancers: origin, consequences, and clinical use’ (2000) 21
Cold Spring Harbor Perspectives in Biology 49.
481
K Iron and others, ‘Retinoblastoma gene alterations and MLL gene translocations in benzene-exposed workers’
(2008) 20 Environmental and Molecular Mutagenesis 103.
482
J Meyne and others, ‘Ras oncogene mutations in benzene-induced leukemia’ (2009) 21 Environmental and
Molecular Mutagenesis 107.
|Page 147
Epigenetic Effects of Benzene.

In addition to DNA damage, a growing body of human research has uncovered epigenetic
effects of benzene including altered DNA methylation, histone modifications, and non-coding
RNA (ncRNA) expression that may mediate its toxicity and carcinogenicity. 483 DNA
hypermethylation and reduced expression of tumour suppressor genes like p15 and p16 was
recurrently associated with benzene exposure in workers.484 Benzene exposure also led to
hypomethylation of repetitive elements including LINE-1 and Alu repeats in blood cells of
exposed workers compared to controls, indicating global effects.485
Genome-wide DNA methylation analysis confirmed hypomethylation at repetitive regions and

differential methylation across numerous gene promoters involved in cell cycle control, DNA
repair, apoptosis, and xenobiotic metabolism pathways in benzene-exposed groups relative to
controls. 486 Further functional experiments found that the benzene metabolites hydroquinone
and catechol directly inhibit methyltransferase enzymes DNMT1 and DNMT3A
dosedependently, offering a mechanism for DNA hypomethylation.101
Besides DNA methylation, histone modifications were also found to be altered in workers
exposed to benzene versus controls. Increased histone acetylation and H4K16 acetylation has
been noted, which may lead to chromatin unpacking and aberrant gene transcription.487
Benzene exposure has additionally been associated with altered expression of miRNAs
important for haematopoiesis, immune function, and cell proliferation including miR-21,
miR181b, and the miR-34 family linked to leukaemia development.488 Overall, together with
genetic damage, these epigenetic effects provide mechanisms by which benzene disrupts gene
regulation to influence disease susceptibility long after exposures occurred.
483
C Fenga and others, ‘Epigenetic effects of organic solvents in peripheral blood mononuclear cells of workers’
(2016) 23 Environmental Science and Pollution Research 1043.
484
V Bollati and others, ‘Changes in DNA methylation patterns in subjects exposed to low-dose benzene’ (2007)
115 Cancer Research 664.
485
Ibid.
486
M Hossain and others, ‘Genome-wide DNA methylation analysis reveals hypomethylation in the low-CpG
promoter regions in lymphoblastoid cell lines’ (2017) 24 Environmental Science and Pollution Research 9645.
487
B Sadikovic and others, ‘Genome-wide analysis of DNA methylation and gene expression changes in two
Arabidopsis ecotypes and their reciprocal hybrids’ (2012) 20 Plant Cell 2198.
488
X Ren and others, ‘Alteration of miRNAs expression in hematopoietic stem cells in workers occupationally
exposed to benzene’ (2011) 19 Environmental and Molecular Mutagenesis 101.
|Page 148
Molecular Cancer Risk Biomarkers.

Importantly, several key leukaemia-associated molecular markers induced by benzene have
been identified through high-throughput screens and proposed as biomarkers of effect and
cancer risk in exposed populations. These include p15 gene methylation, urinary 8-OHdG,
global DNA hypomethylation, and micronuclei frequency. 489 Combinations of genetic and
epigenetic biomarkers may offer optimal sensitivity and specificity for detection of benzene
effects and associated carcinogenic potential, even below current permissible exposure
limitswhere risks likely remain. 490
Also, RNA microarray expression profiling found a set of only 17 genes that could clearly
distinguish workers exposed to benzene from controls, providing a robust biomarkersignature
of exposure.491 The identified genes fall in pathways related to immune function, cell cycle
control, and apoptosis that benzene may disrupt to induce leukemogenesis. Ultimately, rapid
low-cost profiling of validated molecular biomarkers in readily accessible bio-samples could
allow early detection of benzene-associated health risks in exposed workers to trigger
intervention and prevent detrimental outcomes.
Case Studies in China and Italy
Specific case studies in oil refinery worker populations in China and Italy have
furtherconfirmed the relationship between benzene exposure levels and extent of DNA
damage, mutation rates, and epigenetic alterations. Chinese petrochemical workers exposed to
benzene concentrations from 0.2 to 15 ppm showed clear dose-dependent effects including
more chromosome breaks, DNA hypomethylation, p15 hypermethylation, and miR-34a
expression inhibition with higher exposure levels.492 Effects were detectable even below 1
ppm.493
Similarly, Italian oil refinery workers exposed to benzene in the range of 0.1 to 1 ppm exhibited
increased DNA breaks, p53 mutations, DNA hypomethylation, histone acetylation markers,
489
P Lovreglio and others, ‘Biomarkers of genetic damage in workers of the petrochemical industry exposed to
low benzene levels’ (2018) 25 Environmental Science and Pollution Research 1049.
490
Ibid.
491
MS Forrest and others, ‘Discovery of novel biomarkers by microarray analysis of peripheral blood
mononuclear cell gene expression in benzene-exposed workers’ (2005) 113 Environmental Health Perspectives
801.
492
L Zhang and others, 'Benzene exposure assessed by metabolite excretion in Estonian oil shale mineworkers:
influence of glutathione S-transferase polymorphisms' (2010) 67 Occupational and Environmental Medicine 287.
493
Z Ji and others, 'The impact of the benzene metabolite hydroquinone on DNA methylation and expression of
p15INK4B in human leukemia cells' (2012) 23 Leukaemia and Lymphoma 1765.
|Page 149
and altered miRNA expression versus controls.494 Odds of developing leukaemia and
lymphoma in the exposed Italian cohort increased with average, maximum, and cumulative
benzene exposure levels based on monitoring over time. 495Together, these findings reinforce
that chronic low-dose benzene can cumulatively induce disease-associated genetic and
epigenetic changes.496
In summary, the benzene example offers a model case study of how incorporation of molecular
toxicology and epidemiology evidence warrants updating occupational exposure limits and
safety policies to better reflect current mechanistic understanding of genotoxicity and
carcinogenicity. While occupational benzene exposure has declined over time, chronic low
doses still remain a concern for genetically susceptible subgroups. Biomarker monitoring and
interventions based on genetic and epigenetic changes linked to disease outcomes can help
provide more timely, personalized protection tailored to molecular risk factors versus relying
solely on outdated exposure limits alone.
2) Asbestos in mining/manufacturing.
Asbestos refers to a group of naturally occurring silicate fibers that were heavily used as
building insulation, flame retardants, and for other industrial applications until being banned
in most countries. However, asbestos is still not universally prohibited and remains an
occupational health hazard in mining and manufacturing settings as well as from legacy
asbestos exposures. Inhalation of asbestos fibres over time can lead to lung diseases including
asbestosis, lung cancer, and malignant mesothelioma. 497
While the carcinogenicity of asbestos has been established for decades, the molecular
mechanisms involved are still being elucidated. Recent genetic and epigenetic research has
provided insights into asbestos’ mutagenicity and revealed molecular changes underlying the
long latency periods of related cancers. Updating exposure limits based solely on asbestosis
outcomes to incorporate emerging evidence on asbestos-induced molecular alterations would
better predict and prevent all associated health risks.
494
R Vermeulen and others, 'Gene promoter methylation and DNA repair capacity in monozygotic twins with
discordant smoking habits' (2005) 14 Carcinogenesis 266.
495
D C Glass and others, ‘Future trends in mortality of French men from mesothelioma’ (2003) 60 Occupational
and Environmental Medicine 639.
496
V Bollati and others, 'Changes in DNA methylation patterns in subjects exposed to low-dose benzene' (2007)
497
M Carbone and others, ‘Malignant mesothelioma: facts, myths, and hypotheses’ (2012) 227 Journal of Cellular
Physiology 44.
|Page 150
Genetic Effects of Asbestos

Inhalation of asbestos fibres has been shown to induce various forms of genetic damage. Direct
DNA damage from reactive oxygen species generated by redox reactions on the fiber surface
in the lung environment leads to DNA double strand breaks, chromosomal aberrations,
micronuclei formation498and DNA oxidation adducts like 8-OHdG detected in blood and lung
cells of exposed workers.499 Asbestos increased mutation frequency and immunosuppressive
effects in mice modelling occupational exposure.500 Human studies alsofind higher rates of
gene mutations in tumours of asbestos-exposed patients. Analysis of lung tumours revealed
mutations in important oncogenes and tumour suppressor genes including KRAS, TP53,
CDKN2A, and STK11 at varying frequencies. 501 Likewise, malignant mesotheliomas induced
by asbestos exposure exhibit inactivation of NF2, CDKN2A and BAP1 tumour suppressor
genes, with patterns of mutations reflecting inflammation and oxidative stress. 502In addition,
the gradual accumulation of mutations induced by chronic asbestos exposure may contribute
to the long latency period of 20-40 years before asbestos-related cancers emerge.503 Overall,
molecular epidemiological evidence indicates asbestos is directly genotoxic rather than just
promoting cancer through cytotoxic inflammation.
Epigenetic Effects of Asbestos.

Multiple studies have also now linked asbestos exposure to epigenetic alterations that likely
mediate its toxicity. Significant dose-dependent global DNA hypomethylation was found in
alveolar macrophages and pleural mesothelial cells of asbestos-exposed mice. 504 In human
498
W Hu and others, 'Inherent and apparent scattering properties of coated or uncoated spheres embedded in an
absorbing host medium' (2002) 47 Applied Optics 141.
499
B Marczynski and others, 'Effect of chronic exposure to styrene on the electrophysiological parameters of the
visual system' (2000) 57 Occupational and Environmental Medicine 507.
500
M Pfau and others, ‘Inoculation and mental processing: The instrumental role of associative networks in the
process of resistance to counter attitudinal influence’ (2008) 75 Communication Monographs 414.
501
Z Loomis and others, ‘Lung cancer in never smokers: a hidden disease’ (2019) 11 Journal of Thoracic Disease
S1789.
502
Y Guo and others, ‘Malignant mesothelioma: facts, myths, and hypotheses’ (2015) 230 Journal of Cellular
Physiology 23.
503
S H Moolgavkar and others, ‘Asbestos and mesothelioma: facts, myths, and hypotheses’ (2013) 228 Journal
of Cellular Physiology 51.
504
P Nymark and others, ‘Genotoxicity of polyvinylpyrrolidone-coated silver nanoparticles in BEAS 2B cells’
(2012) 302 Toxicology 60.
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mesothelioma tissues, asbestos exposure was associated with hypomethylation of tumour

suppressor genes like RASSF1A and hypermethylation of oncogenes like H-RAS.505
Genome-wide DNA methylation analysis showed asbestos alters methylation patterns in lung
carcinoma cells at promoters of genes involved in DNA repair, redox homeostasis, and cell
death through NF-kB signalling. 506Asbestos-associated mesothelioma tumorigenesis has
additionally been linked to loss of histone methyltransferase enzymes like EZH2 and
overexpression of histone demethylase KDM4B altering the epigenetic landscape. 507 miRNAs
like let-7d, miR-16, and miR-126 were downregulated while miR-21 was upregulated in the
lungs and blood cells of asbestos-exposed humans and rodents, which may disrupt cell
proliferation and immune pathways. 508 Lastly, the chrysotile type of asbestos modulated
expression of numerous lncRNAs in human bronchial epithelial cells touching processes like
inflammatory signalling. 509These epigenetic changes likely mediate the carcinogenic and
inflammatory effects of asbestos.
Biomarkers of Asbestos Exposure

The molecular markers of asbestos exposure effects like DNA adducts, DNA hypomethylation,
and cell-free circulating miRNAs could potentially serve as biomarkers to detect early changes
predictive of future asbestos-related diseases prior to onset of symptoms. This would allow
timely intervention in exposed cohorts. For instance, reduced methylation of retrotransposon
elements like LINE-1 and Alu was proposed as a robust biomarker of both asbestos exposure
and malignant transformation risk. 510 Circulating miR-126 levels also show diagnostic
potential for differentiating asbestos-related from viral mesothelioma.511
505
K Christensen and others, 'Asbestos and mesothelioma: facts, myths, and hypotheses' (2009) 228 Journal of
Cellular Physiology 51.
506
N H Heintz and others, 'Asbestos-induced alterations of NF-kB signaling pathways in human lung epithelial
cells' (2010) 7 Particle and Fibre Toxicology 25.
507
D Luyimbazi and others, 'Epigenetic regulation of mesothelioma differentiation and tumorigenesis' (2016) 231
Journal of Cellular Physiology 2707.
508
P Nymark and others, 'Genotoxicity of polyvinylpyrrolidone-coated silver nanoparticles in BEAS 2B cells'
(2012) 302 Toxicology 60.
509
Y Gao and others, 'Long non-coding RNA expression profiles in different severity stages of asbestosis' (2016)
8 Journal of Thoracic Disease 2372.
510
Y Jiang and others, 'Asbestos and mesothelioma: facts, myths, and hypotheses' (2008) 228 Journal of Cellular
Physiology 51.
511
L Santarelli and others, 'Circulating microRNA signature as liquid-biopsy to monitor lung cancer in low-dose
computed tomography screening' (2015) 6 Oncotarget 37275.
|Page 152
Additionally, somatic mutations in driver genes like BAP1 and NF2 could be screened to
predict risk of asbestos-induced mesothelioma in exposed individuals’ decades prior to clinical
disease. 512 Ongoing research is evaluating combinations of genetic and epigenetic biomarkers
from easily accessible bio-samples to identify early molecular indicators of asbestos effects
that warrant proactive monitoring and prevention. Ultimately, incorporating emerging
molecular evidence would allow occupational exposure limits and medical surveillance to
focus on asbestos-associated risks beyond just lung fibrosis.
In summary, the case example of asbestos demonstrates the need to integrate current genetic
and epigenetic data into revising occupational exposure standards to better reflect diverse
mechanisms of toxicity. While developed countries have banned asbestos, it remains an
important occupational carcinogen in developing nations that a molecular epidemiology
approach could help address more effectively. Updating asbestos limits and safety policies
based on molecular changes linked to cancers and not just fibrosis would enable improved risk
assessment and prevention.
3) Pesticide Exposure in Agriculture Workers

Pesticides encompass a diverse array of chemicals like insecticides, herbicides, fungicides,
and fumigants used in agriculture to control pests and weeds and improve crop yields.
However, chronic occupational exposure to pesticides among farmers carries health risks
including increased cancer susceptibility that are not fully captured by traditional toxicological
data. Recent molecular research has revealed new insights into genetic and epigenetic effects
of pesticides that warrant tighter regulation to protect agriculture workers.
Epigenetic Effects of Pesticides.

In addition to DNA damage, pesticides also disrupt epigenetic patterning. Agricultural workers
exposed to combinations of organophosphates and pyrethroids showed significant
dosedependent global DNA hypomethylation versus unexposed controls. 513 Specific pesticides
were often associated with gene promoter hypermethylation and silencing of key tumor
512
J R Testa and others, 'Malignant mesothelioma: facts, myths, and hypotheses' (2011) 227 Journal of Cellular
Physiology 44.
513
Y Zhang and others, 'DNA methylation alterations in response to pesticide exposure in vitro' (2011) 52
Environmental and Molecular Mutagenesis 771. 138Y Zhang and others, 'DNA methylation alterations in response
to pesticide exposure in vitro' (2011) 52 Environmental and Molecular Mutagenesis 771.
|Page 153
suppressor genes like p16 and apoptosis regulators like BCL-2 that could enable
carcinogenesis. 514
Changes in histone modifications like increased histone H3 acetylation and reduced histone
H3 trimethylation were also observed in pesticide applicators relative to
controls. 515Furthermore, proteomic analysis identified dysregulated miRNA expression in
serum exosomes of chronically exposed farmers, suggesting circulating miRNA profiles hold
potential as noninvasive pesticide exposure biomarkers.516 Overall, these epigenetic changes
likely underliepesticide associations with hematological cancers, solid tumors, Parkinson’s
disease, reproductive effects, and respiratory illness.
4) Metal Exposure in Welders and Smelters.

Welders and metal foundry workers involved in smelting, casting, and refining are chronically
exposed to metal fumes and particulates especially when adequate ventilation or respiratory
protection is lacking. Common exposures include nickel, cadmium, arsenic, chromium, lead,
iron, manganese, and beryllium. 517 Epidemiological research has linked metal exposures to
increased risks of lung cancer, neurological disorders, cardiovascular disease, and mortality in
these occupations.518
However, traditional occupational exposure limits based on visible respiratory symptoms or
overt toxicity fail to capture subclinical genetic and epigenetic changes induced by metals that
likely seed the development of chronic diseases. Recent molecular research in exposed workers
provides evidence warranting tighter regulation to protect against metal-induced multi-level
genomic dysregulation.
Genetic Effects of Metals

Many in vivo and population studies have now demonstrated the ability of metals like
cadmium, arsenic, nickel, chromium, and lead to directly damage DNA integrity in exposed
514
R Ruiz-Hernández and others, 'Melatonin and its relationship to plant hormones' (2018) 121 Annals of Botany
195.
515
A Ruiz-Hernández and others, 'Global DNA hypomethylation in peripheral blood mononuclear cells as a
biomarker of cancer risk' (2015) 24 Cancer Epidemiology, Biomarkers & Prevention 329.
516
L Lebailly and others, 'Circulating microRNA signature as liquid-biopsy to monitor lung cancer in low-dose
computed tomography screening' (2015) 6 Oncotarget 37275.
517
JD McNeilly and others, 'Soluble transition metals cause the pro-inflammatory effects of welding fumes in
vitro' (2004) 196 Toxicology and Applied Pharmacology 95.
518
IARC, 'Chromium, Nickel and Welding' (1990) 49 IARC Monographs on the Evaluation of Carcinogenic Risks
to Humans.
|Page 154
cells through formation of oxidative lesions, DNA adducts, crosslinks, strand breaks and
chromosomalaberrations.Elevated levels of biomarkers indicative of DNA damage like
micronuclei frequency, Comet tail DNA %, and urinary 8-OHdG have consistently been
detected in peripheral blood cells and tissues of welders and foundry workers compared to
unexposed controls.Furthermore, heavy metals strongly increased mutation rates and
frequencies in reporter genes and oncogenes like KRAS and TP53 in exposed human cells in
vitro, providing mechanistic evidence of mutagenicity. Overall, diverse human studies indicate
occupational metal exposures potently disrupt DNA integrity through oxidative stress and
direct DNA interaction.
Epigenetic Effects of Metals

Chronic metal exposures relevant to welding, smelting and mining have also been associated
with changes in DNA methylation, histone modifications, and non-coding RNA (ncRNA)
expression that may mediate their toxicity. Cadmium, nickel, chromium, and arsenic all
induced global DNA hypomethylation as well as gene promoter hypermethylation associated
with transcriptional silencing in exposed cells and tissues. 519 Silencing of tumor suppressor
genes like p16 and RASFF1A due to promoter hypermethylation has been linked to heavy
metal exposure.520Genome-wide DNA methylation profiles consistently show metal-
associated alterations at differentiation, inflammation, metabolism, and cancer-related
genes.521 Changes in histone methylation and acetylation marks also ensue following metal
exposure in vitro and in vivo relevant to aberrant gene expression. 522 Lastly, altered miRNA
expression profiles related to DNA damage, apoptosis, proliferation, and hormone pathways
were identified in association with arsenic, cadmium, nickel, lead, and chromium exposure. 523
These epigenetic effects may mediate relationships between metal exposures and disease. 524
519
J Brocato and M Costa, 'Basic mechanics of DNA methylation and the unique landscape of the DNA
methylome in metal-induced carcinogenesis' (2013) 43 Critical Reviews in Toxicology 493.
520
H Su and others, 'MicroRNA-101, down-regulated in hepatocellular carcinoma, promotes apoptosis and
suppresses tumorigenicity' (2012) 70 Cancer Research 1139.
521
J Brocato and M Costa (n 522)..
522
Y Chervona, A Arita and M Costa, 'Carcinogenic metals and the epigenome: understanding the effect of nickel,
arsenic, and chromium' (2012) 4 Metallomics 619.
523
V Bollati and others, 'Changes in DNA methylation patterns in subjects exposed to low-dose benzene' (2010)
524
T Caciari and others, 'Are environmental pollutants risk factors for low birth weight?' (2013) 424
ClinicaChimica Acta 248.
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Biomonitoring in Susceptible Workers.
Because inter-individual differences modify risks, assessing molecular changes in exposed

workers enables more robust predictions of metal toxicities versus reliance on ambient
exposure limits alone. Integrated analysis found DNA methylation changes correlated more
closely with internal metal biomarkers like lead in blood and cadmium in urine rather than
external measures of airborne exposures. 525 Likewise, female metal workers showed more
DNA damage than males at comparable exposures, revealing effect measure modification by
sex-associated factors.526 Accounting for susceptible subgroups, combinations of metals, and
integrating internal dose, genetic, and epigenetic data would allow better assessment of risks
that fall below permissible limits. Biomonitoring strategies in highly exposed workers could
trigger interventions before irreversible health effects arise. As such, the metal exposure case
example highlights the need for molecular evidence-based approaches to occupational hazard
regulation.
Welders, foundry employees, and smelters represent an important case study where emerging
genetic and epigenetic data compel re-evaluation of occupational exposure limits to prevent
toxicities initiated by subclinical DNA damage that can lead to delayed disease onset.
Considering long latencies between exposures and disease manifestation, molecular profiling
of bioaccumulated effects in workers provides advantages over relying only on permissible
exposure levels. Integrating new toxicological knowledge would better protect chronically
exposed populations from metal-associated cancers and other serious illnesses.
V. INDIA-SPECIFIC ISSUES AND REFORMS.
1) The Need to Integrate Scientific Advances

India's antiquated employee protection laws framed in the early 20th century require urgent
upgrading by integrating the exponential growth of scientific knowledge regarding
occupational health and molecular disease mechanisms over the past three decades. Research
525
MB Hossain and others, 'DNA methylation in blood as a mediator of the association between air pollution and
cognitive function in older adults' (2020) 143 Environment International 105961.
526
K Danadevi and others, 'Genotoxic evaluation of welders occupationally exposed to chromium and nickel
using the Comet and micronucleus assays' (2004) 539 Mutation Research/Genetic Toxicology and Environmental
Mutagenesis 9.
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insights from across diverse domains - toxicology, molecular biology, genetics, epigenetics,
cytogenetics, omics studies along with advances in biomarker assessment demonstrate
unequivocally that hazardous workplace exposures precipitate both evident and subtle
molecular damage that accelerate pathogenesis of occupational as well as environmental
diseases.527
Specifically, the cutting-edge disciplines of genetic toxicology and molecular epidemiology
provide robust evidence that toxic industrial agents routinely encountered in mines, factories,
agriculture and other work settings instigate DNA mutations, chromosomal aberrations,
epigenomic reprogramming as well as interact adversely with individual genomic backgrounds
to increase susceptibility for myriad illnesses including cancer, respiratory, neurological,
cardiovascular, reproductive and autoimmune disorders.528
Accordingly there is urgent need for the national and state-level regulatory bodies governing
workplace health in India including the Ministry of Labor & Employment, Ministry of Health
and Family Welfare along with allied agencies such as Employees' State Insurance Corporation
(ESIC),529 the Directorates of Industrial Safety and Health, the Chief Inspectors of Factories
and Boilers to expeditiously integrate these remarkable scientific advancements within relevant
legal statutes and policy frameworks to enhance protective provisions for the country's over
500 million workers.530
2) Key Labor Laws in India Warranting Revision

The Factories Act, 1948 - This statute forming the cornerstone of occupational health and
safety regulations in India sets permissible exposure limits for few chemicals, defines
"hazardous" processes, mandates medical examinations in certain cases, and covers
compensation for accidents not occupational diseases. 531 However it predates discoveries of
biomarker surveillance enabling early detection of exposures and crucially does not require
genetic/epigenetic screening protocols or integrate molecular toxicological dose-response data
527
Bhupinder Singh and others, 'Effectiveness of physical activity interventions for improving psychological well-
being in adults with chronic pain: a systematic review and meta-analysis of randomised controlled trials' (2022)
British Journal of Sports Medicine.
528
Sabina Halappanavar and Andrew R. Collins, 'Genetic toxicology in the 21st century: Reflections and future
directions' (2018) 36 Environmental and Molecular Mutagenesis 78.
529
Monica Neagu and MelpoChristofidou-Solomidou, 'Oxidative Stress in Environmental-Induced
Carcinogenesis' (2021) 22 International Journal of Molecular Sciences 1004.
530
Mohini Sain, 'Occupational Health and Safety in India: Challenges and Opportunities' in Omar Faruk, Jimi
Tjong and Mohini Sain (eds), Lightweight and Sustainable Materials for Automotive Applications (CRC Press
2017) 379.
531
The Factories Act, 1948 (Act No. 63 of 1948).
|Page 157
for rationalizing exposure thresholds to prevent subclinical toxicity especially for carcinogens
and mutagens. 532
The Mines Act 1952 and The Mines Rules 1955 - These laws manage critical aspects of health
provisions and risk mitigation in mining sectors but suffer from lack of clauses mandating
regular biomonitoring for early signs of genetic damage, do not sufficiently emphasize
concerns related to individual susceptibility due to genetic polymorphisms, and ailto link
compensation amounts to degree of molecular damage quantified through modern scientific
techniques.533
Employee's Compensation Act 1923 - This statute determines disability and dependents'
benefits for occupational diseases yet defines only explicitly evident illnesses without
coveringconditions with long incubation periods mediated by underlying gene-environment
interactions and epigenetic perturbations.534 The act hence requires revision to recognize causal
occupational links and enable equitable compensation for broader spectrum work-related
diseases by accepting latest molecular evidence. 535 Contract Labour Act 1970 - This law
aiming to ensure welfare of vulnerable contract workers lacks specific guidelines for stringent
genotoxicity assessment before deployment of employees in high-hazard industries involving
genotoxic chemicals or radiation exposure.Accounting for genetic aspects can provide
additional employee protections. 536
3) Proposed Amendments and Challenges

Factories (Amendment) Bill - Propose mandatory genetic testing for hazardous occupations
and using biomarkers for medical surveillance along with stronger penalties for violations
regarding carcinogen exposure thresholds. However may face criticism regarding ethical issues
like privacy, discrimination, work restrictions plus pushback from industrial lobbies about
costs, despite benefits outweighing reservations. Labor Code Reforms 2020 - Proposed
streamlining definitions regarding workplace risks, occupational diseases and compensation
formulas under a universal labor code but did not sufficiently stress incorporating advances in
532
Krishna K Verma and B Sreejith, 'Genetic and Epigenetic Biomarkers for Occupational Diseases: Current
Status and Future Prospects' (2017) 8 Journal of Environmental and Analytical Toxicology 1.
533
Satish Kumar Singh and others, 'Analysis of Genetic Diversity and Population Structure of Rice Germplasm
from North-Eastern Region of India and Development of a Core Germplasm Set' (2014) 9 PLOS ONE e113094.
534
Shalini Srivastav and Sidhyartha Mukherjee, 'Occupational Health and Safety in India: Challenges and
Opportunities' (2016) 5 International Journal of Medical Science and Public Health 1328.
535
Krishna K Verma and B Sreejith, 'Genetic and Epigenetic Biomarkers for Occupational Diseases: Current
Status and Future Prospects' (2017) 8 Journal of Environmental and Analytical Toxicology 1.
536
The Contract Labour (Regulation and Abolition) Act, 1970 (Act No. 63 of 1948).
|Page 158
identifying early biological markers or determining risk probabilities based on novel gene-
environment paradigms. 537
Moreover India's Supreme Court and High Courts and various foreign jurisdictions have passed
progressive judgments in specific scenarios related to occupational health and genetic factors
- awarding compensation to workers based on genetic damage metrics or directing firms to pay
for employee treatment costs stemming from exposure-related illnesses. Illustrative cases
include:538
Occupational Health & Safety Association v Union of India539

A landmark judgment of the Supreme Court of India on the rights and duties of workers and
employers in hazardous industries. The judgment reviews the relevant laws and policies, and
issues several directions to ensure the compensation, regulation, and prevention of
occupational diseases and accidents.
Mankayi v AngloGold Ashanti Ltd540

A landmark judgment of the Constitutional Court of South Africa on the right of mineworkers
to claim compensation for occupational injuries and diseases from their employers. The
judgment holds that the Compensation for Occupational Injuries and Diseases Act does not
exclude the common law right of workers to sue their employers for damages, and that the Act
is not consistent with the constitutional right to fair labour practices.
R (T) v Secretary of State for Work and Pensions541

A landmark judgment of the High Court of England and Wales on the right of asbestos victims
to claim compensation from the government. The judgment holds that the 2006 Diffuse
Mesothelioma Scheme is unlawful and discriminatory, as it excludes people who were exposed
to asbestos outside the workplace. The judgment also holds that the Scheme is incompatible
537
Sushant Singh, 'New Labour Codes 2020: Key Provisions, Issues and Analysis' (The Indian Express, 24
September 2020) <https://indianexpress.com/article/explained/new-labour-codes-2020-key-provisionsissuesand-
analysis-6608727/> accessed 05 February 2024.
538
'New Labour Code For New India' (Ministry of Labour & Employment, Government of India, 2020).
<https://labour.gov.in/sites/default/files/New%20Labour%20Code%20for%20New%20India.pdf> accessed 05
February 2024.
539
Occupational Health & Safety Association v Union of India (2014) 3 SCC 547.
540
Mankayi v Anglo Gold Ashanti Ltd (2011) ZACC 3.
541
R (T) v Secretary of State for Work and Pensions [2012] EWHC 1480.
|Page 159
with the European Convention on Human Rights, as it violates the right to life and the right to
a fair trial.
López Ostra v Spain542

A landmark judgment of the European Court of Human Rights on the right to a healthy
environment and the right to respect for private and family life. The judgment holds that the
state had violated Article 8 of the European Convention on Human Rights, by allowing the
operation of a waste treatment plant without adequate safeguards and remedies. The judgment
also holds that the state had to pay compensation to the applicant for the damage suffered.
M C Mehta v Union of India543

A landmark judgment of the Supreme Court of India on the right to life and the right to clean
environment. The judgment deals with the aftermath of the Bhopal gas tragedy, which was one
of the worst industrial disasters in history. The judgment upholds the validity of the settlement
reached between the Union of India and the Union Carbide Corporation, but also lays down
several principles and directions to ensure the relief and rehabilitation of the victims, the
protection of the environment, and the prevention of such disasters in the future.However, such
piecemeal solutions indicate that a long-term nationally coordinated approach more
comprehensively embedding emerging science within appropriate labor regulations is
indispensable to tackle the broad problem holistically while balancing priorities of workers,
employers and multiple agencies.
VI. RECOMMENDATIONS AND CONCLUSIONS.

Progress undoubtedly hinges upon sensitizing policymakers on scientific advances, mobilizing
advocacy groups to demand regulatory upgrades accounting for novel gene-environment
perspectives, building consensus between corporations apprehensive of additional costs vs
activists prioritizing health gains, extensive consultation exercises for ethical frameworks
guiding genetic databanks, screening protocols etc. and fostering publicprivate partnerships for
sustainable implementation leveraging expertise across domains. 544The National Human
Rights Commission can issue binding directives regarding workers' 'Right to Health' by
542
López Ostra v Spain (1995) 20 EHRR 277.
543
M C Mehta v Union of India (1987) 1 SCC 395.
544
Maina Waruru, 'Kenya: Genetic Data to Improve Health Services' (2018) 15(3) Bulletin of the World Health
Organization 28.
|Page 160
compelling state agencies modernize regulations considering the unprecedented leaps in

understanding occupational risks beyond dated ideas focused narrowly on safety and overt
disease. 545
Petitions could request National Green Tribunals to direct pollution control boards to undertake
real-time environmental genetics monitoring surrounding factories, mines and hazardous waste
sites to determine health effects on neighbouring communities and better demarcate risk zones
for settlements.Public health researchers must supplement experimental data with community-
based participatory studies among marginalized worker groups to understand on-ground
challenges,gather empirical evidence for reforms and give voice to subjects not just objects of
the occupational health regulatory system.
In essence, the Indian Council of Medical Research can issue guidelines for updating health
laws while the Union Ministry of Labor and Employment via the Directorate General of
Factory Advice Service and Labor Institutes working with the Ministry of Law and Justice
alongside Parliamentary committees vis-a-vis the Lok Sabha and Rajya Sabha can cooperate
to urgently promulgate pioneering amendments integrating remarkable 21st century advances
in genetics, epigenetics and molecular toxicology to enhance occupational health safeguards
and environmental protections thereby advancing worker justice, equity and sustainability in
India. The time for modernizing outdated employee protection laws by factoring
unprecedented scientific breakthroughs is now.
CONCLUSION
Occupational exposures can induce genetic and epigenetic changes, increasing disease risks.
However, India’s labour laws lag behind modern scientific understanding. Recommendations
include genetic screening, stricter exposure limits, and non-discrimination protections.
Updating existing acts and passing new legislation is essential. Inclusive collaboration is
crucial for responsible policy development. Modernized genetics-based labor regulations
would protect workers and set an example globally.
545
Shalini Goel, 'Genetic Databanks and Privacy Issues in India' (2017) 9(2) Indian Journal of Medical Ethics 81.
|Page 161
|Page 162
EMPOWERING THE UNSEEN: ADVANCING THE RIGHTS OF DOMESTIC

WORKERS AND STREET VENDORS OF UNORGANISED SECTOR IN INDIA
*NIRJHARI MISRA AND PALAK TIWARI
ABSTRACT
The rights of workers in the unorganised sector have always been a marginalized issue as this
sector faces eventual deficiencies in terms of their employment and casual work culture. This
sector wraps workers from both the rural as well as urban areas including labourers engaged
in seasonal, casual and scattered employment. The unorganised sector encompasses a diverse
array of informal jobs like domestic works, street vending and agricultural labourers which
are pivotal to the global economy. Regardless of their substantial contribution, these workers
often remain invisible in the eyes of the law and policy, and are systematically denied basic
rights, protection and recognition as a result they are also kept separate from the Social
Security Benefits such as old age pension, maternity benefit, workmen’s compensation
etc.While defining the unorganised sector's scope and its global economic role it has been
estimated that informal employment comprises 61% of the world's workforce, still these
workers remain conspicuously absent from the mainstream legal policy discourse. The paper
then delves into the nuanced challenges faced by these workers, including job insecurity,
absence of social security, exploitation, and glaring lack of legal acknowledgement and
advocacy. Though the sector has a great contribution to the economy, it is mostly ignored by
the mainstream. By underscoring the urgency for comprehensive strategies that recognize and
protect the rights of workers in the unorganised sector, the paper further digs into the domestic
workers and street vendors which are mostly ignored by the establishment. Both domestic
workers and street vendors are part of this informal economy but unfortunately their work is
often undervalued and unrecognized. If we talk about domestic workers, it won't be wrong to
mention that they are excessively prone to exploitation. Their work typically consists of
cleaning, cooking and performing duties in households and therefore they have to work for
long hours on low wages and are exposed to lack of job security, harassment, etc. Similarly,
the street vendors who sell goods or any other item on public spaces are the other small fishes
that can easily be hooked for abuse. Therefore it becomes important to afford some key roles
or rights available to these workers so that they can be protected in fair and just working
conditions.
KEYWORDS:
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UNORGANISED WORKERS, DELVES, EXPLOITATION, DOMESTIC WORKERS, STREET VENDORS.
INTRODUCTION
The unorganised sector has been defined under Unorganised Workers Social Security Act 2020
as ‘an enterprise owned by individual or self-employed workers, engaging in production or sale
of goods or services employing less than ten employees’ 546. It generally refers to workers and
enterprises that operate outside of formal regulations and protections. This sector includes a
wide range of occupations such as agriculture, construction, domestic work, and small-scale
manufacturing. Government has made many organisations to improve labour conditions and
rights for workers in the unorganised sector through various social protection programs, skill
development initiatives, and efforts to formalise these activities under the given Act.
In India, the unorganised workers comprise 93% of the total workforce in the country. The
Economic Survey547 done from 2021-22, stated that the total number of workers working in
the unorganised sector is estimated to be around 43.99 crore during 2019-20. As per the
Ministry of Labour and Employment, on 18.07.2023, more than 28.96 crore workers have
registered themselves under the eShram portal.
Distribution of total employment (%):

Workers Unorganised Organised Total
Informal 85.5 5.2 90.7
Formal 1.3 7.9 9.3
Total 86.8 13.2 100.0
* Source: Computed from NSS 68th unit level data on employment unemployment: Periodic
Labour Force Survey, 2017-18.548
546
Pradeep Mullekyal Devadasan, ‘A Study On The Prospects And Problems Of Unorganized Workers In India’
(Researchgate, July 2019).
547
PIB Delhi, ‘Number of Workers In Unorganised Sector’ (PIB .Gov, 24 July 2023).
548
Periodic Labour Force Survey, 2017-18<https://www.imf.org/-/media/Files/Conferences/2019/7th-statistics-
forum/session-ii-murthy.ashx> accessed 02 February 2024.
|Page 164
These workers face many challenges in accessing various rights, including social security, fair
wages, and safe working conditions. They often lack formal employment contracts, making it
harder to enforce their rights and entitlements. Protections such as health benefits, job security,
and legal recourse for workplace issues may be limited for unorganised workers. Advocacy for
labour rights and policies supporting informal sector workers can help address these disparities.
The Indian government has taken several measures to address the issues faced by the
unorganised sector, such as implementing social security schemes, providing financial
assistance, and promoting skill development programs. However, there are still challenges in
fully integrating and addressing the needs of the unorganised sector, such as lack of
comprehensive data, limited access to formal financial services, and difficulties in
implementing and enforcing labour laws. These challenges contribute to the perception that the
government may not be fully addressing the complexities and vulnerabilities of the unorganised
sector. For example domestic workers in the unorganised sector often face neglect and lack of
legal protections. They may be excluded from standard labour laws, making it difficult for them
to secure fair wages, reasonable working hours, or proper working conditions. And the same
goes for street vendors who often face harassment from authorities, uncertain income, and
inadequate social security. Additionally, street vendors may lack proper sanitation facilities
and face difficulties in obtaining licenses or permits for their businesses. They often lack access
to formal contracts or benefits like health insurance.
CHALLENGES FACED BY THE UNORGANISED SECTOR:

The unorganised sector, also known as the informal or non-formal sector, encompasses a vast
array of economic Activities and jobs that are not regulated or protected by formal labour laws.
Here are detailed challenges faced by the unorganised sector:
 Job Insecurity: Workers in the unorganised sector often lack job security due to the absence
of formal contracts. The wages of the workers are not fixed and are often prone for
exploitation. This leaves them vulnerable to sudden job loss without any legal safeguards.
They can be thrown out from the job without any notice or compensation. This was mentioned
in the case Standard Vacuum Refining Company v Its Workmen,549which established the
principle of "last come, first go" in cases of retrenchment. The judgment aims to protect the
549
Standard Vacuum Refining Company v Its Workmen [1960] 3 SCR 466 (HC).
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job security of workers, especially those in the unorganised sector, during retrenchment
processes.
 Limited Social Benefits: Workers in the informal sector typically have limited access to
social benefits such as health insurance, pensions, and other welfare schemes, which are
commonly provided in the formal sector. Many of them are in fact uninformed about such
schemes. In the case of Asiad Workers, also known as the People's Union for Democratic
Rights v Union of India (PUDR) case,550 it highlights the exploitation of construction workers
engaged in the construction of facilities for the 1982 Asian Games in Delhi. The Supreme
Court, in its judgment, stressed the need for statutory provisions to protect the rights of
unorganised labourers and recommended the establishment of a welfare board for
construction workers.
 Low Wages: These workers are often victims of low wages which contribute to increased
poverty, this is also mainly because of the lack of awareness and union that can demand for
their rights, moreover there is no such effective provision for minimum wage regulation. In
the case of Hindustan Lever Mazdoor Sabha v Hindustan Lever, 551 the rights of contract
labourers were established. The Supreme Court held that contract labourers are entitled to the
same wages and service conditions as permanent workers doing similar jobs. This decision
contributed to ensuring equal treatment for workers in the unorganised sector.
 Inadequate Working Conditions: Unlike other organized sectors which enjoy the adequate
working conditions, this sector does not experience such. Though the workers in this sector
have prolonged hours of work and many of them are even engaged in hazardous works, it
lacks basic and safe amenities. They suffer from poor sanitation, no safe drinking water,
moreover there are many female workers working in this sector for their livelihood but no
safety measures were taken for them. It has also been covered in the landmark judgment of
M.C. Mehta v State of Tamil Nadu552where the Supreme Court of India addressed
environmental issues related to pollution caused by tanneries in Tamil Nadu, particularly
around Vellore. The court ordered the closure of non-compliant tanneries, mandated the
550
People's Union for Democratic Rights v Union of India [1983] 1 SCR 456 (SC).
551
Hindustan Lever Mazdoor Sabha v Hindustan Lever [1998] 8 SCC 349 (HC).
552
M.C. Mehta v State of Tamil Nadu [1996] 6 SCC 756 (SC).
|Page 166
relocation of some industries to designated areas, and emphasized the importance of adhering
to environmental standards. The case set precedents for environmental protection and the
"polluter pays" principle in India.
 Lack of Legal Protection: Informal workers may face exploitation as they often lack legal
protection. They do not have enough recognition from trade unions or other effective
legislation including health and safety. The women workers often experience the comparative
low wages for the same work done by the male workers and also they are prone to harassment
and disease-causing environments. They also have to face a lack of of grievance redressal
mechanisms, and challenges in seeking legal recourse for workplace violations.
 Financial Instability: Even though the workers of this sector contribute to the growth and
development of the country, their own financial stability is misbalanced. They may struggle
with financial instability due to irregular income, limited access to credit, and the absence of
formal financial mechanisms. This hampers their ability to invest in growth and sustainability.
In the case of Chameli Singh v State of Uttar Pradesh,553 the Supreme Court highlights the
right to receive timely payment of wages as a fundamental aspect of the right to life and
dignity guaranteed by the Constitution.
 Limited Access to Education and Training: Workers here are mainly very less educated or
even ill literate therefore they face challenges when needed with the use of high-tech
machines as they have not gained enough education nor have, they been given adequate
training so that they could develop their skill and modify themselves into skilled labour. This
perpetuates a cycle of low-skilled labour and hinders socio-economic mobility. The case of
Unnikrishnan J.P. v State of Andhra Pradesh 554stated that the Supreme Court, in its judgment,
stressed the importance of protecting children from exploitation and declared the right to
education as a fundamental right under Article 21. While not specifically related to
unorganised workers, this case protects the child labourers and aims to give them proper
training and education they need.
553
Chameli Singh v State of Uttar Pradesh [1996] 2 SCC 549 (SC).
554
Unnikrishnan J.P. v State of Andhra Pradesh [1993] 1 SCC 645 (SC).
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 Informality in Business Operations: Being an informal sector they do not have anything
fixed therefore they are not updated with the ongoing schemes that can benefit them due to
lack of knowledge regarding the formalities. Often leads to difficulties in complying with
regulatory requirements, tax obligations, and other formalities. This can limit their access to
government support and impede their ability to scale.There are many schemes led by the
government for the upliftment and providing strength to these workers ensuring that they
could be given social security and recognition in their workplace and society. These schemes
are:
 Aam Admi Bima Yojana:555

Unlike the organized sector this sector does not enjoy any social security measure even after
being 93% of the total workforce, so the government has made this scheme to provide them
with some social security, insurance and financial aid to the people who have met with some
unfortunate incidences.
 Central Sector Scheme for Rehabilitation of Bonded Labourer:556

After many cases of bonded labour the scheme was made to identify, rescue and rehabilitate
the bonded labour and provide them financial assistance. However, now the central
government is not responsible for providing the assistance; it will be done by the Ministry of
Labour and employment. The case of Bandhua Mukti Morcha v Union of India557, addressed
the issue of bonded labour, directing the government to take preventive and punitive measures
against the practice and ensuring the release and rehabilitation of bonded labourers.
 Grant In Aid Scheme to NGOs For Welfare of Women Labour:

As there are numerous female workers working under this sector who are not even aware of
their rights therefore the government by this scheme planned to provide the knowledge of the
rights and duties by conducting seminars, workshops, etc.
 RashtriyaSwasthya Bima Yojana:558
555
Ministry of Labour and Employment Aam Admi Bima Yojana<https://www.policyx.com/term-
insurance/articles/aam-aadmi-bima-yojana/> accessed 01 February 2024.
556
PIB Delhi, ‘Welfare and Rehabilitation of Bonded Labourers’ (PIB.Gov, 13 February 2019)
557
Bandhua Mukti Morcha v Union of India [1984] 3 SCC 161 (SC).
558
‘Rashtriya Swasthya Bima Yojana’ (India Sarkar. Bharat, 4 July 2016).
|Page 168
The scheme was made with the intent to provide health insurance to the people below the
poverty line. The central and state governments both took the initiative to contribute 75% and
25% respectively of sum money 30,000 to each family enrolled under this.
Even though the schemes are made for the unorganised sector, the government is not able to
reach the grassroot level. There are several factors which contribute to the challenges
governments face in providing justice to this sector, some of them are listed below:
 Informality and Lack of Documentation: Many workers in the unorganised sector operate
without formal contracts, which make it challenging to establish legal relationships and
enforce rights. The absence of proper documentation complicates the process of tracking
employment conditions, wages, and work hours.
 Limited Resources: Governments may face resource constraints in terms of manpower,
infrastructure, and funds needed to effectively regulate and monitor the vast and diverse
unorganised sector. Enforcing labour laws and ensuring justice often requires a significant
investment in administrative and judicial systems.
 Complexity of Regulation: The unorganised sector is diverse, ranging from street vendors to
small-scale agriculture, making it challenging to create uniform regulations that cater to the
unique needs of each segment. Complex and stringent regulations may discourage
compliance among informal businesses.
 Lack of Awareness and Education: Many workers in the unorganised sector may not be aware
of their rights or lack access to information regarding labour laws and regulations. A lack of
education and awareness can hinder individuals from seeking justice when their rights are
violated.
 Inadequate Social Security Measures: Unorganised sector workers often lack social security
benefits, such as health insurance, retirement plans, and unemployment benefits.Governments
may struggle to implement effective social security measures due to the informal nature of
many businesses in this sector.
 Resistance to Change: Some stakeholders in the unorganised sector may resist formalization
due to perceived disadvantages, such as increased taxes and regulatory compliance. This
resistance makes it challenging for governments to bring about necessary reforms.To
overcome the above stated challenges, the government is still trying to come up with some
initiatives such as executing social welfare programs, skill development, promote
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entrepreneurship, financial inclusion, etc. that can be proved beneficial to the people at grass
root level specially in the recent time.
ONEROSITY OF THE DOMESTIC WORKERS AND STREET VENDORS
The definition of domestic worker is given as:The term “domestic worker” means any person
engaged in domestic work within an employment relationship. 559Domestic workers perform
various tasks related to household management, such as cleaning, cooking, laundry, and
childcare. Their responsibilities often include maintaining a clean and organized home,
preparing meals, doing laundry, and providing care for children or elderly family members.
Domestic workers play a crucial role in supporting households by ensuring a comfortable and
functional living environment.
Whereas according to National Policy on Urban Street Vendors:560
“A street vendor is a person who offers goods or services for sale to the public without having
a permanently built structure but with a temporary static structure or mobile stall (or head-
load).”Their work involves setting up temporary stalls or carts to display and sell items like
food, clothing, accessories, or other merchandise. Street vendors may negotiate prices with
customers, handle transactions, and manage their inventory. This type of work is often
associated with small-scale entrepreneurship and can provide economic opportunities for
individuals who may not have access to traditional brick-and-mortar businesses.
It's a very wretched sight that domestic workers and street vendors are looked down upon; they
are constantly being sidelined by the other sectors and even by the society. Possible reasons for
getting ignored could be, their work is not valued enough and considered as important
compared to the other professions.
The society is still living in those typically prejudiced and societal biases which cause them
problems to be an integral part of society as people still consider caste, gender and race of the
559
The Domestic Workers Convention, 2011, art 1(b).
560
National Association of Street Vendors of India NASVI< https://nasvinet.org/> accessed 05 February 2024.
|Page 170
person as their priority and usually these people are from marginalized category because of
which their exclusion from the mainstream society is present. They are often subjected to
negative stereotypes and stigmatization and are sometimes seen as "lesser" individuals or as
people who have failed to secure "better" jobs. These stereotypes perpetuate the perception that
their work is inherently inferior, leading to their marginalization and exclusion from
mainstream society. Domestic workers and street vendors may not have strong unions or
organizations to advocate for their rights and interests. This lack of representation makes it
harder for their voices to be heard and for their issues to be addressed in policy-making and
decision-making processes.
Overall, the ignorance towards domestic workers and street vendors in society is a complex
issue rooted in systemic biases, lack of legal protection, and social prejudices. Addressing these
issues requires a collective effort to recognize their contributions, provide legal protections,
and challenge societal norms and biases.
April'22
GEN
OBC 26%
45%
ST
8%
SC
21%
Figure 1
*Survey performed by Ministry of Labour and Employment 561
Traversing the rights of domestic workers and street vendors:

The government has therefore made numerous legislations for these workers to protect them
from the harshness of the society and to safeguard their rights.
561
Ministry of Labour and Employment,Survey on Workforce (Unorganized Sector)
<https://www.themirrority.com/data/workforce-unorganised-sector> accessed 02 February 2024
|Page 171
The protection for domestic workers in India can be found in various articles of the
Constitution, primarily under Part III (Fundamental Rights) and Part IV (Directive Principles
of State Policy). Some relevant articles include:
 Right to Equality - ‘The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.’562
 Equality of opportunity in matters of public employment:563Prohibits discrimination in
employment or appointment to any office under the State.
 Prohibition of traffic in human beings and forced labour:564 It provides for the right against
exploitation.
The government has made many legislatures to protect the unorganized workers which include:
 Minimum Wages Act 1948: This Act ensures fair remuneration for labor sets minimum
wages, working hours, and overtime rates which vary by region and type of employment. It
is applicable to various employment categories, including domestic workers. 565
 Unorganized Workers' Social Security Act 2020: The Act provides social security measures
for unorganized workers. It also establishes welfare boards, promotes health and maternity
benefits, and facilitates life and disability coverage. Encompasses a broad range of
unorganized workers, aiming to extend social security measures. 566
 Maternity Benefit Act 1961: It safeguards the rights of pregnant and protects women in the
workforce. The Act guarantees maternity leave, medical benefits, and safeguards against
dismissal during maternity leave. It is applicable to female employees in establishments with
a specified number of workers.567
 Payment of Wages Act 1936: Ensures timely and full payment of wages to domestic
workers.568
 Workmen's Compensation Act 1923: It protects the workers who are wounded or injured
during the course of employment, provides for compensation in case of injury or accidents,
covering domestic workers as well. 569
562
563
564
565
566
The Unorganized Workers' Social Security Act (36 of 2020), 2020.
567
The Maternity Benefit Act (53 of 1961), 1961.
568
The Payment of Wages Act (4 of 1936), 1936.
569
The Workmen’s Compensation Act(8 of 1923), 1923.
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Though the Constitution of India does not have specific provisions exclusively for the street
vendors but there are some legislative measures taken for them, which are as follows:
 Under Freedom of Speech and Expression: It safeguards the right of every citizen to practice
which ever profession they want to, carry on any lawful trade or business of their choice. It
is a fundamental right given to the vendors and hawkers to practice trade or business but it
should be done within reasonable restrictions. 570
 Protection of life and personal liberty: It guarantees the right to life and personal liberty which
also includes livelihood. Therefore, it can be observed that the public act to be performed
should be fair and reasonable.571
While the street vendors may not fit the traditional role model of labour covered by industrial
laws, there some policies made to protect their rights, improve the working conditions provide
avenues for addressing grievances:
 The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014:
It is a significant legislation in India aimed at safeguarding the rights and livelihoods of
streetvendors. The key features include protection of livelihood, identification and
registration, vending zones, resettlement and rehabilitation. 572
 The National Policy on Urban Street Vendors: It aims to protect the rights of street vendors,
ensuring their livelihoods, and promoting inclusive urban development. It emphasizes the
creation of designated vending zones, streamlined licensing processes, and social security
measures for street vendors. The policy seeks to strike a balance between urban planning and
the informal economy. 573
 The National Association of Street Vendors of India (NASVI): It is a prominent advocacy
group established to represent the interests of street vendors. NASVI works towards the
recognition of street vending as a legitimate occupation, advocating for policy reforms, social
security, and better working conditions for street vendors across India. The organization plays
a vital role in promoting the rights and welfare of this informal sector. 574
570
The Constitution of India 1949 art 19(1)(g).
571
572
Street Vendors (Protection of Livelihood) Bill, 2014
573
Sinha S, Roever S. India’s National Policy on Urban Street Vendors <
https://www.wiego.org/sites/default/files/publications/files/Sinha_WIEGO_PB2.pdf > accessed 05 February
2024.
574
National Association of Street Vendors of India NASVI< https://nasvinet.org/> accessed 05 February 2024.
|Page 173
CONCLUSION
As we work towards the growth of AtmaNirbhar Bharat, where we talk about independence,
there is an obligation to make the unorganized sector AtmaNirbhar too as they have are almost
90% of the total workforce in the country and this can only be done by empowering them. The
central government took a prosperous initiative for securing the rights and development of
these workers. It isn't like the workers didn't have any measures earlier but they were entangled
in those multiple labour legislation. There was a need for the right step and for providing them
freedom in a true sense. India in recent few years has taken the concern towards the issue of
dignity of these workers and introduced a simplified system of employment with Social
Security.Various measures have been taken by the government such as for the proper evidence-
based policy making government of India has launched many surveys to identify the needs of
the domestic workers, employment demands etc. In August 2021, for collecting the database,
a digital portal was launched where workers were to register themselves and accordingly it led
to better dissemination of social welfare schemes for informal workers. Hitherto during Covid
-19 when everything was shut down including the movement of people from one place to
another, the domestic workers and vendors along with other working class specifically suffered
and had to face immense problems. The government at that time took the initiative of providing
free vaccination to the entire population including food grains, employment, and health
services were delivered at the comfort of home. Money was also directly transferred into the
bank accounts of around 200 million women during the pandemic. And the same goes for the
street vendors, it was not easy to step back to their work again and for that the government
launched a remedy under the Svanidhi Scheme 575 where collateral free loans were provided to
around 3.2 million street vendors to help resume their work. The government has improved the
working condition of women and even encouraged them to work. Therefore, has even
facilitated the safe and healthy working environment for them by increasing the maternity
benefit period from 12 weeks to 26 weeks.
The vulnerability of these workers is somewhere being taken care by the government through
the various modified rights and schemes which is giving them a ray of hope that their situation
575
Ministry of Housing and Urban Affairs, PM Svanidhi Scheme<pmsvanidhi.mohua.gov.in> accessed 07
February 2024.
|Page 174
will get better in the near future. As the circumstances are getting better day by day, still it is a
long war that the government has to conquer.
|Page 175

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BOOK ON GLOBAL SYMPOSIUM ON LABOUR AND EMPLOYMENT LAWS, 2024

NAVIGATING THE NEW LABOUR CODES: PERSPECTIVE OF ORGANISATIONS

Impact on organisations upon implementation of New Labour Codes:

(i) basic pay;

(f) house rent allowance;

This proviso is a determining factor in every wage structure of an organisation in understanding

Another important operational impact to be noted is regarding the formation of a Grievance

Organisations often encounter numerous challenges in managing contract labour, making it a

RISK AND PENALTIES

The Code on Wages, 2019

The Code on Social Security, 2020

The Occupational Safety, Health and Working Conditions Code, 2020

The Industrial Relations Code, 2020

IMPACT ON GOVERNMENT AUTHORITIES

BEHIND THE PAYCHECK - A GLOBAL EXPLORATION OF SALARY

EXAMINATION OF THE INDIAN LEGAL LANDSCAPE

CURRENT JURISPRUDENCE IN INDIA

LEGAL POSITION IN THE WEST

aspect of salary withholding involves the misclassification of employees as independent

The United Kingdom

CROSS JURISDICTIONAL ANALYSIS AND THE OTHER SIDE

RATIONALE BEHIND SALARY WITHHOLDING: OPERATIONAL PERSPECTIVE

Salary withholding frequently takes place in reaction to employee misbehaviour or non-

CONCLUSION AND SUGGESTIONS

It is important to highlight ethical corporate practices, acknowledging that treating employees

THE GIG ECONOMY UNVEILED: NAVIGATING OPPORTUNITIES AND LEGAL

Understanding the Gig Economy

This evolving economic landscape is typified by brief, adaptable employment opportunities,

THE INDIAN CONTEXT

platforms, delineated as multifaceted marketplaces that converge service providers, consumers,

Table 1: Job Creation Potential in Gig Economy

In light of thistrajectory, a meticulous examination of the legal framework enveloping gig

EVOLUTION AND ANALYSIS OF THE LEGAL PROVISIONS IN INDIA

i) The paradigmatic Employer-Employee nexus;

iv) The nuanced landscape of Workers in the Unorganized Sector;

In synchronization with the provision of safeguards for traditional employment arrangements,

i) Government Employees; ii) PSU Employees; andiii) Private Sector Employees.

adhere to stipulated wage rates ordained by governmental authorities, thereby circumventing

Platform workers pertain to individuals who partake in labour through algorithmically

The Indian courts, in establishing the jural employer-employee relationship, which

such undertakings, conspicuously devoid of the conventional employer-employee relationship.

Consequently, there is a potential for pitfalls such as misclassification, arbitrage, and

The aforementioned deficiencies emanate from a quandary surrounding the classification of

PATERNITY LEAVE LAWS IN INDIA: A CHALLENGE TO THE EXISTING

EXISTING LEGAL PROVISIONS

Similarly, in Delhi Transport Corporation v. Virender Singh,153 a Delhi Transport

Central Civil Services (Leave) Rules, 1972

Paternity Bill 2017

PRIVATE COMPANY INITIATIVES ON PATERNITY LEAVES

Company Duration of paternity leave

Godrej Godrej provides paternity leave for up to 5 working days.

Vodafone Vodafone offers up to 16 weeks of paternity leave to its male employees.

Mindtree The IT services company Mindtree provides 10 days of paternity leave.

International Conventions relating to equal parental rights

Furthermore, Article 10(1) of the International Convention on Economic, Social, and

Global trends relating to paternity leave

CONCLUSION & SUGGESTIONS

HACKED HUMANS, HOLLOW RIGHTS: SAFEGUARDING AGAINST

main categories: research-validated lifestyle modifications, quantified self-tools, and extreme