Towards Inclusive Societal Equity: A Comparative Analysis of Employment Laws in India and South Africa Through the Lens of Social Justice and Human Rights
BHAVYA JOHARI* ∙ February 4, 2024 ∙ ARTICLE
In pursuing robust equality laws in the labour law realm, a comparative analysis between South Africa and India reveals stark contrasts in their approaches. While India grapples with gaps in legislation aligned with International Labour Organization (ILO) Convention No. 111,[1] South Africa's Employment Equity Act sets a progressive benchmark.[2] This blog explores the nuanced dimensions of crafting comprehensive laws, the inclusivity in their applicability, and the imperative need for a cohesive legal framework to address social justice in both nations.
India, having ratified the ILO Convention No. 111,[3] which explicitly addresses issues of discrimination in employment and occupation, stands at a juncture where its legislative framework falls short of aligning comprehensively with this Convention, a divergence notably highlighted when compared with South Africa's legal approach. Although Article 2, in conjunction with Article 3(b),[4] mandates the appropriate execution of laws to achieve the objectives of the ILO Convention, specifically equality and non-discrimination, no evident progress or implementation has occurred in this regard. This prompts a compelling call for India to institute meticulous legislation that systematically incorporates the principles of equality and non-discrimination within its labour laws.
While the Constitution of India, particularly Articles 14,[5] 15,[6] and 16,[7] ostensibly embraces provisions for equality and non-discrimination, ensuring equal opportunities in employment, the practical realization of these principles has encountered challenges, as exemplified by the recent legal precedent, Kaushal Kishore.[8] The Supreme Court of India has hesitated to apply fundamental rights against entities other than the state or its instrumentalities. Although the majority bench in the Kaushal Kishore case extended the applicability of Articles 19 [9] and 21,[10] a conspicuous silence remains concerning other rights, notably Articles 14, 15, and 16. These articles hold particular significance for our discussion. Justice B.V. Nagarathna notably dissented, restricting the applicability solely to habeas corpus petitions.[11] This selective application and invocation of horizontal applicability highlights an urgent need for targeted legislation to augment awareness and enable the practical assertion of these claims. Moreover, a fundamental challenge persists within the existing parameters of the Constitution of India. Unlike South Africa's Employment Equity Act, which encompasses a broader range of non-discrimination categories, such as gender and disability,[12] the Constitution of India, on the other hand, lacks such comprehensive parameters, resulting in the limited applicability of outdated clauses.
Although Articles 32[13] and 226[14] of the Constitution of India offer avenues for addressing constitutional violations, the absence of explicit legislation hampers the awareness-raising process and complicates the assertion and realization of claims. Thus, an imperative exists to enact explicit legislation that effectively address issues related to equality and non-discrimination in employment practices.
Turning attention to the Employment Equity Act in South Africa, a distinctive feature of its extensive scope and inclusiveness emerges through precise definitions of "employee" and "employer."[15] An employee is defined as one who receives compensation and contributes to an employer's activities.[16] In contrast, an employer is characterized as an entity employing 50 or more individuals or meeting a specific annual turnover threshold, set at a minimum of 2,000,000 South African Rand, roughly equivalent to Rs 8 lakhs in Indian rupees.[17]
A similar inclusive approach extends to parallel labour legislation, notably the Basic Conditions of Employment Act.[18] When juxtaposed with India's labour laws, such inclusivity significantly broadens the South African labour laws’ scope, whether the Employment Equity Act or the Basic Conditions of Employment Act. In India, the definition sections of the new labour codes[19] delineate specific categories such as skilled, semi-skilled, and manual work. Employees falling outside these categories may not be recognized as such, leading to a potential deprivation of social protections. Although the Indian labour codes as mentioned above have not yet been implemented, existing legal frameworks can still be referenced where language has been mechanically transposed. The Minimum Wages Act,[20] which is soon to be incorporated into the Code on Wages, contains analogous classifications as outlined in Section 2(s), defining workmen. This provision led to a notable case, Haryana Unrecognised School Association.[21] In this case, the Apex Court, drawing upon the precedent set in Miss A. Sundarambal,[22] excluded teachers from the scope of the legislation, denying them protections typically afforded under such statutes. In contrast, South Africa's Employment Equity Act adopts more inclusive definitions.[23] This expansive approach ensures a more comprehensive and inclusive application, embracing a broader spectrum of the population within South Africa’s society.
Moreover, within Indian labour laws, a critical deficiency is the lack of meticulous cross-referencing among their statutes. The nexus between laws, social intricacies, and biased perspectives creates a need for cohesive legal frameworks, which stand as a unified and formidable entity rather than persisting in fragmented isolation. The potential deficiency in explicit provisions regarding equality and non-discrimination could have been addressed through the incorporation of existing non-discrimination statutes. For instance, a model akin to Section 6 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act might have been adopted.[24] This provision facilitates the integration of India’s Penal Code provisions into the said legislation, thereby imbuing it with greater normative strength. A parallel strategy in the formulation of the upcoming codes could involve the incorporation of equality and non-discrimination provisions, such as Section 3 of the Rights of Persons with Disabilities Act.[25] This would serve as a cohesive element, harmonizing the new codes with established norms, and reinforcing the commitment to non-discrimination.
The core issue lies in the need for comprehensive coherence within legal frameworks. As illustrated in the scenario above, the deficiency concerning non-discrimination provisions in the recent labour codes could have been mitigated by incorporating existing laws, specifically by accommodating Section 3 of the Rights of Persons with Disabilities Act to address the gaps overlooked in the new labour codes. The resolution of societal issues is contingent upon intricate cross-referencing of laws. Unfortunately, this critical aspect is notably absent, exemplified by the failure of the new labour codes to integrate and make room for existing legal provisions. This concept has yielded tangible solutions on a global scale, particularly within the realm of human rights. The adoption of cross-referencing practices from progressive nations, has allowed for successful navigation of conventional norms.[26] Therefore, when these progressive norms are already embedded in domestic jurisprudence, there exists no impediment to embracing cross-referencing methodologies. This dynamic can provide for the broadening of substantive coverage. In India’s context, recent labour codes, that is, the Code on Wages,[27] Industrial Relations Code,[28] Code on Social Security,[29] and the Occupational Safety, Health and Working Conditions Code,[30] have all four faltered in integrating prevailing non-discrimination laws concerning vulnerable segments of society, such as the Rights of Persons with Disabilities Act[31] and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.[32] This lack of synchronization undermines the comprehensive approach vital for achieving social justice.
Addressing this matter mandates the establishment of a comprehensive framework that synchronizes diverse legal statutes and delineates primary and secondary responsibilities, thereby ensuring the realization of social justice. Despite the imperative outlined in ILO Conventions 102[33] and 155,[34] which advocate for universal social protection encompassing all individuals, irrespective of their employment status, India’s legislation has yet to widely integrate this concept.[35]
The proposed solution to address government resource limitations consists of a hybrid model, rooted in the South African paradigm. In scenarios where an individual is employed and the annual turnover of the employer surpasses 2,000,000 South African Rand (approximately equivalent to Rs 8 lakhs in Indian rupees), the principal responsibility lies with the employer. Concurrently, the government assumes a secondary role, primarily intervening during periods of unemployment to safeguard individuals from destitution. Conversely, should the employer's annual turnover dip below this threshold, the onus shifts to the government due to resource constraints, while the employer assumes a supportive role. This strategic framework aims to streamline resource allocation, fostering enhanced efficiency in governance.
This dual mechanism guarantees a social protection safety net, even during unemployment, fostering social inclusivity and equity.
*Law Student at NALSAR University of Law, 2024.
[1] International Labour Organization (ILO), Discrimination (Employment and Occupation) Convention (No. 111), June 15, 1958 [hereinafter ILO Convention No. 111].
[2] Employment Equity Act (Act No. 55/1998) (S. Afr.), § 1.
[3] See ILO Convention No. 111, supra note 1.
[4] Id. at arts. 2, 3(b).
[5] The Constitution of India 1950, art. 14.
[6] Id. at art. 15.
[7] Id. at art. 16.
[8] Kaushal Kishore v. State of Uttar Pradesh Govt. of U.P. (2023), Writ Petition (Cr1.) No. 113/2016 (India).
[9] The Constitution of India 1950, art. 19.
[10] Id. at art. 21.
[11] Kaushal Kishore v. State of Uttar Pradesh Govt. of U.P (2023) (per Nagarathna, B.V., dissenting) (India).
[12] Employment Equity Act, supra note 1, at § 6.
[13] The Constitution of India 1950, art. 32.
[14] Id. at art. 226.
[15] Employment Equity Act, supra note 1, at § 1.
[16] Id.
[17] Id. At § 1 and Schedu1e 4.
[18] Basic Conditions of Employment Act of 1997 (Act No. 75/1997) (S. Afr.), § 1.
[19] See Code on Wages, 2019 (Act No. 29/2019) (India), § 2; Occupational Safety, Health and Working Conditions Code, 2020 (Act No. 37/2020) (India), § 2; Code on Social Security, 2020 (Act No. 36/2020) (India), § 2; Industrial Relations Code, 2020 (Act No. 35/2020) (India), § 2.
[20] Minimum Wages Act, 1948, (Act No. 11/1948) (India), § 2.
[21] Haryana Unrecognised Schools Association v. State of Haryana, AIR 1996 SC 2108 (India).
[22] Miss A. Sundarambal v. Government of Goa, Daman and Diu & Ors, AIR 1988 SC 1700 (India).
[23] Employment Equity Act, supra note 1, at § 1.
[24] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (No. 33/1989) (India), § 6.
[25] Rights of Persons with Disabilities Act of 2016, § 3.
[26] Tilmann Altwicker, Transnationalizing Rights: International Human Rights Law in Cross-Border Contexts, 29 Eur. J. Int’l L. 581, 606 (2018).
[27] See Code on Wages Act, supra note 16.
[28] See Industrial Relations Code, supra note 16.
[29] See Code on Social Security, supra note 16.
[30] See Occupational Safety, Health and Working Conditions Code, supra note 16.
[31] Rights of Persons with Disabilities Act, 2016, (Act No. 49/2016) (India).
[32] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (Act No. 33/1989) (India).
[33] International Labour Organization (ILO), Social Security (Minimum Standards) Convention (No. 102), Jan. 29, 1952.
[34] International Labour Organization (ILO), Occupational Safety and Health Convention (No. 155), June 3, 1981.
[35] Ravi Ahuja, A Beveridge Plan for India? Social Insurance and the Making of the “Formal Sector,” 64 Int’l Rev. Soc. Hist. 207 (2019).