What About Legal Remedies?

The Indian Legal Framework for Worker Safety and Health

Poulomi Chatterjee and Radhika Jha*

India’s industrial sector, comprising manufacturing, mining, construction, and other industries, is crucial to the country’s economic growth and employment generation. However, the pursuit of economic development often takes precedence over safety measures and worker protection, leading to a disregard for labour rights and compromising the overall welfare of workers. Industrial accidents reflect the complex interplay between economic priorities, profit-driven industries, and the rights and well-being of workers.

According to government data accessed by IndiaSpend, an online news portal, three workers on an average died every day in Indian factories between 2017 and 2020.1 The reported figure of 1,109 deaths and more than 4,000 injuries on an average each year in the same period might be just the tip of the iceberg, since these are only the official numbers from registered factories.According to data from the Ministry of Micro, Small & Medium Enterprises (MSME), the total number of the unregistered small-scale industries (SSI) sector is estimated to be 91,46,216 units. Of these, more than a third were primarily involved in product manufacturing/assembly/processing (36.12 percent)2 .

Even as there is a sustained focus on MSME and ‘Make in India’ by the present government, with financial support and subsidies to boost growth, far from comparable emphasis has been made towards ensuring adherence to safety standards. In recent years, the government has relaxed inspections and licensing to allow self-certification and has exempted some companies from reporting on health and safety to ease business and support small enterprises3 . This can have serious implications on the already dire safety situation in Indian industries.

An oft-quoted argument is that industrial accidents are almost unavoidable due to the inbuilt ‘probability of failure’ associated with technology, as well as the inborn nature of persons to commit mistakes through omission or commission4 . Evidence suggests, however, that it is the lack of regulatory framework and oversight mechanisms that contribute heavily to industrial accidents. Research indicates that not only do a majority of industrial accidents go unreported, but the probability of such accidents also increases in smaller, unorganised, “Tier III” companies5 that form a bulk of the industrial manufacturing.

Despite such troubling evidence, the legal framework for industrial safety in India remains limited in scope. In the following section, we look at the national statutory safety requirements in place that industries need to comply with as well as some of the international provisions that may apply in India.

Remedies Available Towards Industrial Accidents

In cases of industrial accidents, legal remedies can be availed majorly through the Factories Act of 1948, the Mines Act of 1952, and the Code on Occupational Safety, Health, and Working Conditions prescribed by the Ministry of Labour and Employment. Aside from the above, the National Policy on Safety, Health and Environment at Work Place was declared by the Ministry of Labour and Employment, Government of India in February 2009 after consultations with the partners of the International Labour Organization (ILO).

However, the grundnorm i.e. the foundation of all laws in force being the Constitution of India, we must also look for guidance in its provisions, wherein the rights of citizens and the principles of governance, i.e., the Directive Principles of State Policy, have been mentioned. According to these directive principles, it is expected of employers and all authorities hiring employees to secure the safety, health, as well as the strength of their employees, as mentioned under Article 39 of the Constitution6 . Moreover, Article 42 provides that such employers must also ensure that just and humane conditions of work are provided to employees.

Legal Remedies before 2020

Even as the legal remedies for industrial accidents are not very extensive, there are nonetheless some provisions under which workers can seek recourse. Until 2020, most of these remedies were scattered and some provisions under various legal statutes could be applicable. Some of the key statutes that are applicable in such cases are as follows:

1. The Factories Act, 1948 : This legislation lays down regulations for the safety, health, and welfare of workers employed in factories. It requires factory owners to maintain certain safety standards, provide necessary safeguards, and take precautions to prevent accidents. If an industrial accident occurs due to non-compliance with these regulations, the affected workers can seek remedies under the Act.

2. Workmen’s Compensation Act, 1923, now known as the Employee’s Compensation Act, 1923 : This Act provides for compensation to workers in the event of an employment-related injury or death. It mandates that employers will compensate workers or their dependents for injuries, disabilities, or fatalities arising from accidents occurring during the course of employment. The compensation amount varies based on the nature and extent of the injury.

3. Employees’ State Insurance Act, 1948 : This Act establishes a social security system for workers in certain sectors. It provides benefits such as medical care, cash during temporary or permanent disability, and compensation for death resulting from employmentrelated accidents. Employers contribute to the Employees’ State Insurance Corporation (ESIC) to fund these benefits.

4. Criminal Liability : Industrial accidents resulting from negligence or violation of safety regulations may attract criminal liability under various provisions of the Indian Penal Code (IPC). Sections such as 304A (causing death by negligence) or 336 (endangering the life or personal safety of others) can be invoked to hold individuals or organisations accountable.

5. Civil Remedies :Affected individuals, including workers, can file civil suits seeking compensation for the damages suffered due to an industrial accident. They can claim compensation for medical expenses, loss of earnings, disability, pain, and suffering, among other losses. The claimants must establish the liability of the responsible party through evidence.

However, the grundnorm i.e. the foundation of all laws in force being the Constitution of India, we must also look for guidance in its provisions, wherein the rights of citizens and the principles of governance, i.e., the Directive Principles of State Policy, have been mentioned.

The Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code)

In 2020, the Government introduced the Occupational Safety, Health and Working Conditions Code, 2020 (OSH Code) which streamlined various laws related to OSH and working conditions. The Code was introduced as a part of the government’s efforts to rationalise labour laws to ensure better protection for workers and promote ease of doing business. It replaces 13 existing laws and covers a wide range of sectors, including factories, mines, construction sites, and establishments employing contract labour or interstate migrant workers.

The OSH Code sets forth provisions to ensure the safety, health, and welfare of workers. It mandates employers to provide a safe and healthy working environment, maintain standards for accident prevention, and handle hazardous substances responsibly. The Code also addresses workers’ welfare, including employment conditions, working hours, leave entitlements, and social security benefits. It introduces simplified compliance procedures through the Shram Suvidha Portal, streamlining registration and reporting requirements. Additionally, the OSH Code establishes advisory boards to provide guidance and recommendations on policy formulation and enforcement.

Section 6(1) of the Code specifies that an employer must ensure that the workplace is free from hazards which cause or are likely to cause injury or occupational disease to the employe.

Further, Section 8 of the Code discusses the duties of designers, manufacturers, importers or suppliers, and the Original Equipment Manufacturers (OEMs) towards ensuring any articles approved by them are fit for use in all kinds of establishments. Similarly, Section 9 of the Code talks about the duties of the architect, the project engineer, or the designer involved.

International Provisions on Industrial Safety

Even though India is one of the founder members of the International Labour Organization (ILO), which came into existence in 1919, and has so far ratified 41 conventions of the ILO, Convention 155, or the Occupational Safety and Health Convention, 1981 (155) has not been ratified by India.7 Similarly, Convention 187, or Promotional Framework for Occupational Safety and Health Convention, 2006 ( C187) has not been ratified by India either.8

Nevertheless, following are some important international provisions on industrial safety :

1. International Labor Organization (ILO) Conventions : The ILO has developed several conventions related to occupational safety and health. Some of the key ones include :

ILO Convention No. 155 on Occupational Safety and Health, 1981 :This convention provides a framework for promoting occupational safety and health, including risk assessment, prevention, and training measures. This has not been ratified by India.

ILO Convention No. 187 on the Promotional Framework for Occupational Safety and Health, 2006 :This convention emphasises the need for a national system for promoting occupational safety and health, including policy, legislation, and enforcement mechanisms. This has not been ratified by India.

2. United Nations Guiding Principles on Business and Human Rights :These principles outline the responsibility of businesses to respect human rights, including occupational safety and health, as part of their corporate social responsibility. The principles emphasise the duty of businesses to prevent and mitigate adverse human rights impacts, including those related to workplace safety

3. United Nations Sustainable Development Goals (SDGs) :Some of the relevant SDG Targets related to Health and Safety at the Workplace include9 :

SDG 3.9 : Substantially reduce the number of deaths and illnesses from hazardous chemicals and air, water, and soil pollution and contamination by 2030.

SDG 8.8 :Protect labour rights and promote safe and secure working environments for all workers, including migrant workers, particularly women migrants, and those in precarious employment

SDG 16.6 :Develop effective, accountable and transparent institutions at all levels

4. International Organization for Standardization (ISO) Standards :ISO has developed various standards related to occupational health and safety, including ISO 45001:2018, Occupational Health and Safety Management Systems, which provides a framework for organisations to manage risks and improve worker safety.10

Addressing the Loopholes in Ensuring Occupational Safety

In 2016, the landmark case of People’s Rights and Social Resource Centre & Ors. v. Union of India11 prompted the Supreme Court to lay down guidelines for certain environmental criteria for the industries operating in a safe, proper, and hazard-free work environment in Gujarat. In the same case, the Supreme Court also referred to the matter in relation to the Occupational Health and Safety Association v. Union of India,12 wherein particular guidelines to reduce occupational hazards of employees in such industries were carved out.

The maximum protection and the best legal remedy that can be availed after a harmonious construction of these guidelines and the existing acts are such that “free and comprehensive medical treatment” must be provided to all affected employees, in case they are found to be suffering from an occupational disease, ailment or accident, until cured or until death.13 This practice has been ensured in several prevailing cases of industrial accidents in the country.14,15

However, a point that must be noted in the instant scenario, is such that although the Factories Act of 1948 provides for the payment of adequate compensation to affected workers, it does not, in the spirit of the law, actually aim to protect the workers from such industrial accidents, but simply compensated them for it happening. At this point there is an urgent need to review such incidents every five years, with follow-up reviews to understand the reasons and to take action. This is because simply condemning disasters and demanding compensation cannot by itself prevent industrial disasters.16 In June 2020, the IndustriALL Global Union, a global federation representing workers, warned the Government of India to take swift measures to prevent another Bhopal-like tragedy.17

Between 2014-2018, approximately 5800 workers suffered fatal injuries as a result of factory accidents, and an average of about 1160 workers were killed in industrial accidents per annum.18 What makes these numbers heart-breaking is that some accidents were a result of nonapplication of safety standards and could have been avoided.19

Additionally , it is important to note that trade unionist G. Sanjeeva Reddy – President of INTUC and IndustriaALL’s local affiliate, the Indian National Metaworkers’ Federation - had opined that the Indian Government must consider expert advice to address and prevent industrial accidents.20

“Free and comprehensive medical treatment” must be provided to all affected employees, in case they are found to be suffering from an occupational disease, ailment or accident, until cured or until death.

Endnotes

  • Paliath, S. (2023, January 21). 3 Workers Die Every Day in Indian Factories, Govt Data Show. New Delhi, Ahmedabad and Bengaluru, IndiaSpend. Retrieved May 2, 2023 from https://bit.ly/3Q7FvCc
  • Unregistered SSI Sector: Review of Results. Development Commissioner (MSME), Ministry of Micro, Small and Medium Enterprises, Government of India. Retrieved May 10, 2023 from https://bit.ly/46VOCvX
  • Serious Concerns Remain About Health and Safety in India. (2022, January 28). IndustriAll Global Union. Retrieved May 12, 2023 from https://bit.ly/472LBK7
  • Ramesh Kumar & Md. Izhar, Regulatory interventions and industrial accidents: A case from India for ‘Vision Zero’ goals, 113 Safety Science pp.415-424 (2019). Retrieved May 14, 2023 from https://bit.ly/3DvMBZy
  • Modi, A. (2015, October, 6). Workers Exposed to Accidents in Tier III Component Industry. Business Standard. Retrieved June 2, 2023 from https://bit.ly/43CXof9
  • 25 Safety Guidelines for Iron & Steel Sector. Ministry of Steel. Retrieved June 4, 2023, from https://bit.ly/3Dqp24t
  • India & ILO. Ministry of Labour & Employment, Government of India. Retrieved June 15, 2023 from https://bit.ly/44VeSEB
  • Id.
  • Relevant SDG Targets Related to Health and Safety at the Workplace. International Labour Organisation. Retrieved June 15, 2023 from https://bit.ly/44W6oNx
  • ISO 45001: 2018: Occupational Health and Safety Management Systems—Requirements with Guidance for Use. ISO. Retrieved June 16, 2023 from https://www.iso.org/standard/63787.html.
  • People’s Rights and Social Resource Centre & Ors. v. Union of India, Writ Petition No. 110 of 2006 (Supreme Court) [Decided on 23 August 2016].
  • Id.
  • Chandramma v. Manager Regional Office, Civil Appeal No. 9069 of 2022 (Supreme Court) [Decided on 9 December 2022].
  • Dinesh Singh v. Bajaj Allianz General Insurance Company, Civil Appeal Nos. 8215-8216 of 2009 (Supreme Court) [Decided on 23 April 2014].
  • Patel, J. (2022, June 9). New Normal: Increasing incidents of Industrial Accidents, Fire, Blasts & workplace disasters. SabrangIndia. Retrieved June 4, 2023, from https://bit.ly/44ukZQB
  • Government of India must take swift measures to prevent another Bhopal disaster. (2020, June 25). IndustriALL Global Union. Retrieved June 1, 2023, from https://bit.ly/3Oq3xqG
  • No progress made in Indian health and safety crisis. (2021, March 10). IndustriALL Global Union. Retrieved June 11, 2023, from https://bit.ly/3OoCD2D
  • Id.
  • Post lockdown, industrial accidents have killed 75 people in India: Global workers’ union. (2020, July 7). The Hindu Business Line. Retrieved June 24, 2023, from https://bit.ly/3OrRrO3

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