Table of ContentsIntroduction...........................................................................................................................................2

Consultations.......................................................................................................................................3

Strengthening the EvolvingNAP process................................................................................................4

Voices of the Community and Civil Society.......................................................................................4

Changing Role of State and Business:-...................................................................................................6

Pillar I – State Duty to Protect...............................................................................................................8

Pillar II – Business Responsibility to Respect.......................................................................................11

Pillar III – Access to Remedy................................................................................................................15

Way Forward.......................................................................................................................................18

Case Studies.........................................................................................................................................19

Towards an Inclusive National Agenda on Business and Human Rights:Challenges and Way forward

Introduction

With the wielding of significant economic power and political influence by businesses worldwide, the need to ensure businesses to respect human rights across its sphere of influence, has been a matter of concern. Internationally, the UN Guiding Principles on Business and Human Rights (UNGPS), endorsed by the UN Human Rights Council in 2011 were designed to address these issues, and have received widespread support as a framework for preventing, addressing, and remediating business-related human rights abuses. In 2016, the Working Group on Business and Human Rights launched a version 2 of the guidance document on the development of a national action plan, which was a recommendation for all States as part of the implementation of the UNGP’s, where a NAP is defined as an “evolving policy strategy developed by a State to protect against adverse human rights impacts by business enterprises in conformity with the UN Guiding Principles on Business and Human Rights (UNGPs).”1As of November 2018, 21 countries have already developed 22 NAPs (the UK has 2) while 11 more countries are in the process of developing such plans. In addition, there are 15 countries in which non-states initiatives are pushing for a NAP.2

Incidentally, the same year as the UNGP were endorsed, in India, the Ministry of Corporate Affairs, released the National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business, which articulated the need for companies to “respect and promote Human Rights”, “support inclusive growth and equitable development” and be responsive to the “interests of all stakeholders”. As a corollary, SEBI in 2012, mandated top 100 listed companies (later extended to top 500) to submit annual business responsibility report. Subsequently, in 2015, the 2030 Agenda for Sustainable Development reflected an underlying importance to Human Rights by explicitly stating that the aim of the SDGs is to “realize the human rights of all” and that the business sector is a key partner for the United Nations and governments in achieving the SDGs. Specifically, the SDG’s directed at Businesses included - take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking, (SDG 8.7) - protect labour rights, promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment (SDG 8.8). Simultaneously, in India, the Ministry of External Affairs (MCA) recognising the underpinnings of SDG’s, also set out to revise the guidelines which are expected to be released soon. NHRC India also held a series of consultations with Industry Federations and Organizations in early 2017 to encourage voluntary compliance of human rights principles by Business, and as a culmination of these consultations developed a self-assessment tool that could be used by the Industry. In June 2018, it also set up a core group on Business, Environment and Human Rights.

The Indian Government in line with its commitment to the UNGPs has iterated its intention to draw up a National Action Plan.With the Indian government’s focus on economic growth, and the poverty and inequality that pervades the society; low wages, unsafe working conditions, gender inequality, environmental degradation, displacement of indigenous communities due to industrial projects, are all commonly experienced violations that, with other existing and

1 The guidance can be accessed at https://www.ohchr.org/Documents/Issues/Business/UNWG_NAPGuidance.pdf2https://www.business-humanrights.org/en/new-analysis-released-on-national-action-plans-on-business-human-rights-from-2013-2018

potential abuses need to be prevented and addressed. A NAP in this context would enable limiting and mitigating the adverse human rights impacts of business operations in the country. Critical to an effective NAP is the process involved in developing one.In this context, the Danish Institute of Human Rights and the International Corporate Accountability Roundtable’s document that provides guidance on what governments should do to promote better corporate human rights practices, and a set of ten criteria that constitute a strong National Action Plan can be referred to.3

The development of a NAP is also an opportunity for the State to review the implementation of business and human rights frameworks, and then to identify gaps and necessary changes needed across its business related policies and programmes. It needs to be done in an inclusive, transparent, and participatory manner to ensure broad based support and ownership to achieve its human rights commitment, as per the UNGP.

The report provides an insight into the experienced interface between business and human rights by vulnerable communities. It also reflects the various communities’ aspirations and Fears about the process of developing the National Action Plan, as well as the content that they believe should be the focus of NAP. With lines demarcating State and Corporate roles increasingly getting blurred, it is vital that the State ensures adherence to its primary responsibility of protecting public interest, and safeguarding human rights. The inputs from the participants are stated as recommendations under the three relevant pillars of the UNGPs. The hope is that the NAP will be a real, enforceable mechanism that articulate a state’s priorities and actions in the case of business and human rights, and enhances protection for rights holders against business related human rights abuse.

ConsultationsPartners in Change, over the last more than two decades has been engaged in prime moving processes, tools and initiatives that promote responsible business. Amongst these, the India Responsible Index as well as the Status of CSR in India report, (which provide important benchmarks on responsible business, and perspectives on the contributions that businesses in India are making to social and environmental progress) can be one of the inputs for developing and understanding the national baseline.4

As a corollary to its work, Partners in Change, along with Praxis Institute for Participatory Practices and Ethical Trading Initiative, organized consultations on Human Rights and Business for NAP, across five cities between October and November 2018. About 150 participants from 200 organizations representing interests of communities, workers, vulnerable and marginalised groups participated in the consultation. The objectives of the consultation were to a) Share developments both global and national on NAP, b) Invite opinion on principles that should govern the NAP development process, as well as c) Scope and content that should form part of India’s NAP.

3 The set of ten criteria can be accessed here :- https://www.business-humanrights.org/sites/default/files/documents/10%20Criteria%20for%20National%20Action%20Plans%20%28NAPs%29.pdf4 ICAR and DIHR have developed a detailed template for NBA as part of a broader NAP toolkit.it can be accessed here https://www.humanrights.dk/sites/humanrights.dk/files/media/dokumenter/business/naps/annex-b-nba-template-november-2017.pdf

These consultations are also seen to be instrumental in sensitizing stakeholders on the significance of the NAP development process, empowering marginalized stakeholders with knowledge about the process and influencing for the creation of space for their meaningful participation. They were held across five cities of Bengaluru, Guwahati, New Delhi, Bhubaneswar, and Jaipur and included participation of child Labourers, Migrant workers, Women workers and workers from the unorganisedsector. It also saw representation from Dalits and Adivasi communities, Human Rights defenders from Rural and smalltowns, local vendors who form part of supply chains amongst others, NGO’s, academia, and trade unions.

Strengthening the EvolvingNAP process

a) The Government of India has taken the first step by stating its commitment to developing a NAP to implement the UNGP’s.However, the robustness of the Plan is dependent on the process deployed in developing the NAP. An important objective of the consultations held was also to understand how this process could be strengthened. The participants offered inputs on their beliefs on key Principles that should underpin the NAP development process, articulated their fears and concerns and offered recommendations on how this process could be strengthened. ..

Voices of the Community and Civil Society

Key Principles that should form the basis of the National Action Plan development process

The purpose of NAP development process should be to stimulate dialogue on human rights. This requires a significant investment in the process itself, so that proactive efforts could be made to include voices of marginalised communities and their defenders.

The process should respect federal structure, including Panchayati Raj systems. The process should assume that NAP would be influenced by the businesses. There is a

need to keep in mind the existence of the State-Business nexus. The process should be transparent across levels and stages.

(ii) Key Concerns :- Communities and CSOs also carry the following concerns which need to be considered, while evolving the process: -

Like many other action plans in India, “this process could also be an eyewash, with things good on paper, and nothing on the ground”.

It may not be aninclusive process. Generally there will be a ‘club’ that writes the national action plan. Businesses are likely to dominate the NAP development process.

The NAP gets reduced to check-list approach, with the real intent and willingness being absent.

Given that NAP would be the product of State-business nexus, NAP might actually make things worse for human rights defenders. NAPs may not actually challenge the nexus.

NAP would finally lack an effective implementation plan as there would not be any financial allocation for the same.

NAP would lack any independent and mandated review mechanisms.

(iii) Key Stakeholders who need to be consulted:-.

Other than business associations, chambers, CSOs at national level, there should be an active effort to include the following: -

Grassroot NGOs and human rights defenders. Informal workers and their informal associations at different levels. MSMEs, contractors and petty contractors, who areoften delegated the responsibility to

realise human rights in the supply chain. Representatives from LGBT community, PWD, minorities, dalits and adivasi

organisations at local levels.North Eastern states and geographically isolated regions.

Changing Role of State and Business:-Fundamentals rights and its protection is the primary responsibility of the state. The Indian Constitution includes within this gamete human rights as fundamental rights that affirms the constitutional relationship between the state, as the provider and protector, and the citizens, as recipients and consumers. In the recent times, however, shifts in the economy, due to the influence of international markets and other actors, has amongst many other things, downsized traditional role of state, privatised social goods and evolved new role boundaries for both the state and the business. This shift has been gradual, and has created spaces for greater engagement of non-state actors through measured policy interventions.

In the period following independence, the government had exclusive control over sectors of critical importance and those which were essential for public good example, water, electricity, transport. In this context, the government set up State owned enterprises or the PSUs with the objective of furthering social outcomes, providing physical infrastructure and creating stability in times of crisis. However, the public sector overgrew itself and its shortcomings started manifesting in low capacity utilisation and low efficiency due to over manning, low work ethics, over capitalisation due to substantial time and cost over runs, inability to innovate, take quick and timely decisions, large interference in decision making process etc. This led to increasing disinvestment, which was first initiated in 1990s, with a dedicated department, which today is under the Ministry of Finance. Parallel to it the government was opening up the Indian economy and ushering in liberalisation. This further opened up a whole array of possibilities for private sector to enter spaces held by the state. National Highway Authority of India or NHAI was the last to be established, post which the government rather than focusing on establishing PSUs, concentrated on disinvestment and privatisation.

With the entry of the private sector, riding on efficiency, the spaces started to open up for increased possibility of public private partnership. The Public Private Partnerships (PPPs) emerged as a very feasible, viable, and growing mode of delivering services and infrastructure in India. While being argued as an effective way of merging the qualities of the government and the private programme, PPP norms often makes the State playing a role of facilitating businesses, often even at the cost of rights of the citizens, especially over land. The right to participation of citizens in decision making has also reduced as a number of these institutions, which were earlier a part of state machinery and responsible for delivery of rights and were, started becoming irrelevant as many decision are now being made by businesses. 

The shift is very vocally observed in sectors linked with delivery of rights, Education, Health, Electricity, Water, etc , where the role of Government has either lost its relevance or has been limited. The Private sectors has been forthcoming in delivery of the services by these sectors, with business associations actively involved in negotiations, profit being the driving force behind it. While delivering the same the discourse of human rights and social find little or no mention!

These changes have led to two precarious situations. On one hand, it has created an added pressure on the state to be an effective regulator- for the market, control that the state used to have because of it being in the market as a dominant player. Regulation here is intrinsically

linked with safeguard of human rights from exploitation due to changing market conditions. On the other hand, the businesses are promoting the economic growth narrative and its relationship to ‘ease of business’, thereby advancing the argument of de-regulations. The growth narrative has always been closer to the government, and now we see that the government rather than regulating the markets, is working overtime to deregulate, often becoming oblivious to the rights of citizens and workers. Further, the presence of businesses in different task committees and also growing number of top businesspersons finding role in the Government itself as politicians has made the issue of conflict of interest more pronounced. Further, in the recent years, it has also been seen that the State has not necessarily favoured human rights of citizens in scenarios where citizens have protested against companies, eg Sterlite case in Tuticorin.

Over the decades, with privatisation and disappearance of PSUs, the government has also become a significant procurer of services and goods from private players. However, the state has not yet shown any effort to use its consumer power to influence the businesses to be responsible. The two trends of de-regulation and lack of willingness to influence is in direct contradiction with the primary duty of the state to protect human rights of the citizens. While in their external engagement, entry of private sector into spaces ‘exclusive’ to the state has not translated into embracing of the corresponding duties, especially duty to protect human rights, in their internal engagement the businesses have reduced the identity of workers to ‘inputs’. The businesses are demonstrating more enthusiasm to shirk their accountability toward workers through contractualisation. This trend is quite widespread and pertinent even in formal sector, with most companies in the top 100 indicating that contractual labour make up 26% and more of their labour force5. Increasing contractualisation also means limiting the constitutional right of the workers to freely associate within workplace to discuss and further issues of concerns. Collective bargaining and freedom of association, only focuses on permanent employees and with increasing number of contractual workers the entire notion of trade union and collective bargaining is disappearing from the business vocabulary.

The recent legislative changes have further promoted the role of businesses in social development through CSR. Section 135 of the Indian Companies Act prescribes a mandatory CSR spend of 2% of average net profits for all companies meeting specified financial thresholds. While on one hand it is progressive, as it makes businesses a partner in development, on the other by shifting the responsibility to the businesses the state is enabling ‘privatisation of social development, putting human rights discourse in India at risk.

In this ongoing process, while businesses are gaining resources and influence, States are said to be losing some of their power to fully control social, economic and even political processes. The power and authority shared between State and non-State actors and boundaries of the private and the public sphere is blurring, leading to a need to relook at state and businesses as responsible entities with duties. The expectation, therefore, is moving beyond the two strict compartments of respect and protect framework to a framework that allows for both businesses and state use their range of their capabilities and influence to safeguard the rights of the vulnerable, while promoting respect among its internal and external stakeholders.

5 Status of Corporate Responsibility in India, 2018: Do Businesses Respect Human Rights?

Pillar I – State Duty to Protect

Context

According to the UNGP and other International Treaties on Human Rights, State has the primary duty to protect human rights of its people. This is, however, compromised due to lack of adequate policies,and gaps in their implementation, nexus between state and business, entry of business into spaces traditionally held by state and flawed prioritisation.

The flawed prioritisation, which skews in favour ease of doing business over human rights, can also be seen as a causal factor for the lack of willingness among government to evolve effective regulatory mechanism.Stateexhibits substantial legal and policy incoherence and gaps, which often entail significant consequences for victims, companies and states themselves. The most common gap is the failure to enforce existing laws. This legal and policy incoherence arises because the departments and agencies which directly shape business practices – including corporate law and securities regulation, investment, export credit and insurance, and trade – typically work in isolation from, and uninformed by, their government’s own human rights obligations and agencies.

The interaction between the state and businesses, which ideally should feed into social good leads to a nexus endangering human rights. While the businesses use their resource power to leverage relation with lawmakers for stalling and impending policy decisions that can potentially threaten them, the state to appease the businesses leverages its convening power to facilitate unethical practices by the businesses.

Rights of Workers:-While the government has established an extensive set of legislations and regulations, the legal and policy incoherence and gaps, however, render the protection mechanisms ineffective. For example, despite having over 40 central legal mechanisms segmented by Industry or type of work under labour legislation, and addressing issues such as maximum working hours, minimum wages, health and safety and working conditions, over 90% of workers in India work in the informal economy and are therefore vulnerable to exploitation in an unregulated environment. Furthermore, due to absence of payment of minimum wages, large portions of the labour force have to resort to debt bondage in order to meet basic consumption needs, follow social rituals, or deal with medical emergencies. Even within the formal sector, labour violations are rampant and widespread. While laws exist, their enforcement is ineffective.

Adequate Representation and Inclusion:-The legal and policy incoherence and gaps, which often entail significant consequences for victims, need to be addressed through an approach, which adequately addresses human rights issues, while taking into account the diversity of the Indian conditions.Policy Coherence across domestic, regional and international platform will be an important criterion for ensuring an effective National Action Plan. In this regard, besides including all relevant Ministries/functionaries to input into policy promulgation and policy integration, to enable it to meet its obligations under UNGP, coherence needs to happen at the implementation level as well. Representatives from all stakeholder groups, especially the vulnerable/at risk and local communities need to be engaged at both the consultation and decision making levels. These will be extremely critical especially in achieving successful NBA outcomes. Thematic experts for carrying out Environmental and Social Impact Assessments could be appointed. Local community could be part of multi stakeholder committees at various levels to harness their wisdom, as well as represent their interests. These measures of inclusion would be essential to facilitate a strongly grounded approach to NAP.

In India, the government currently is working towards creating a favourable climate for the businesses to flourish and for investments to find traction. The government is working on addressing those issues which will hinder foreign investment and affect foreign investor confidence and capital flows. This is creating two rather disturbing trends. While on one hand, imbalanced growth is creating structural imbalances showing no signs of recovery and leading to denial of social justice, and displacement, on the other hand disinvestment in public sector and increasing privatisation has undermined the rights of workers, as private sector is not bound by constitutional obligations.

This changing scenario, where we see greater private participation and decreasing role of the state, serious doubts have emerged about the application and efficacy of the fundamental rights. This doubt is primarily because, evidence demonstrates that increasing private participation in economy is leading to increasing violation of human rights. Therefore, there is a need to define the concept of fundamental rights and bring the business also into focus for protection and safeguarding human rights against violation, thereby making rights central to business operations. This would require the businesses to move beyond compliance and regulate itself to ensure rights of those at the margins of its operations are not violated.

Experience from the GroundExpressing concern regarding issues of Migrant workers, participants in Guwahati iterated that in many industry sectors, including tea plantation, fishing and construction, in the regions vulnerability of the workers are heighted due to their migrant status. Majority of the migrant workers in Assam are found in the tea plantation sector. Due to their migrant status they depend immensely on the company for all their needs. During the consultation with the workers in Assam it was found that most of the human rights of workers are to be negotiated vis-à-vis the Company. These are not only pertaining to those in the workspace, but also their residential spaces, for their houses are also provided by the company. Interestingly, there is literally no State there. Every interface for every services is through the business. The business has simply replaced the state in everything, including water supply, road, electricity, etc.

Inclusion of Right Holders:-To enable this process of making rights central to business, it would be pertinent to include those voices that are at the margins and these include the workers and the communities impacted by business. Decision making processes as well as actual implementation of the decision need to be done with inclusion of relevant stakeholders, both internal and external, and especially with those whose rights may be affected/belonging to vulnerable groups. The engagement process should be inclusive, participatory, and transparent, in order to provide meaningful opportunities for their views to be taken into account in relation to planning and decision making for projects or other activities that may significantly impact local communities.

Experience from the GroundIn Bhubaneswar the participants observed that Businesses need to involve stakeholders and make them realise the importance of human rights. Without consultation any attempt at ensuring human rights will fail. Stakeholders play an important role in giving perspective to human rights work and policy.In Jaipur participants observed that while it is important to learn from all experiences, as businesses are shifting from workshop to houses. How do we ensure protection of Human Rights for home-based workers? Including these home-based workers into the ambit of the National Action Plan will be the biggest challenge, according to the participants.

A key priority for NAP would be for the Government to reflect transparency and accountability in its own systems and practices. It also needs to ensure human rights standards in its own policies and procedures, as well as in businesses owned or controlled by it(e.g. through PSU’s ) This would necessitate that human rights due diligence parameters are built into its own practices, and are a condition of financial or other support to businesses that it partners. This would also include compliance of partner with human rights standards in compliance with UNGP, when public services are privatised.

Experience from the GroundExpressing concerns over the Laws and legislations and its implementation by the government, participants at Bhubaneswar stated that Laws on Adivasis and Dalits are riddled with ambiguity and are often diluted using means that are legally possible by the government itself. For example, while the corporates cannot acquire land from Adivasi areas, government often on their behalf buy the land and pass it onto the corporate. (any example we can place here)It was also pointed out that Government blatantly violates Human rights and commit atrocities punishable under SC ST POA Act but there isn't even a single instance of a government agency being booked for such crimes. The existing law of the land needs to be followed with due diligence and a monitoring body is required to do the same

Government’s Own Standards:-The biggest shift however needs to happen in transparency around construction and interpretation of laws themselves. The law making process needs to be more transparent and participative, i.e. the legislative process must be accessible to public for viewing and sharing inputs where possible. The powers and legitimacy of important Institutions like the NHRC need a rethink, across aspects of staffing, funding, accessibility and effectiveness to ensure that needs arising in the areas of protection and redressal can be met.

Pillar II – Business Responsibility to Respect

Context

According to UNGP, given that Business and operations have impact on the entire spectrum of human rights, it is expected that they respect human rights. This obligation exists independently of the presence of national laws and regulations protecting human rights and in doing so the businesses are expected to take adequate measures for prevention, mitigation and, where appropriate, remediation.

The above statement reiterates the primary spirit of Pillar II, which stresses absence of law and regulation should not be taken as an excuse to violate human rights. While this is the globally recognised standard, numerous cases of human rights violation exist in India.

The corporate responsibility to respect human rights means acting with due diligence to avoid infringing on the rights of others, and addressing harms that do occur. A company’s responsibility to respect applies across its business activities and through its relationships with third parties connected with those activities—such as business partners, entities in its value chain, and other non-State actors and State agents.Respect for Human Rights requires the businesses to embed the responsibility to respect human rights into its culture, knowledge and practices. .

Experience from the GroundDiscussing the challenges for business with regards to Human Rights, participants at Bangalore observed that Human right is seen as a philanthropic act in the context of CSR in India. The risk

perspective could be regarded as a gateway for value change wherein identifying the violations is made a starting point for the human rights and businesses to be engaged, as a measurement of their commitment to societal well-being.

Expanding Role of Business Vis a Vis violations As businesses slowly moving into new areas,instances and types of violations are also increasing. In 2012, the municipal body in Nagpur handed over its water supply to a subsidiary of the French water corporation, Veolia, for 25 years. Since then, the project has seen allegations of corruption, four times increases in water tariffs, cost overruns, and delays in plugging leaks. The municipal body’s financial losses from water works have reportedly increased by Rs 60 crore per annum, leading to demands, from both opposition parties and the local community, for the ouster of the private player.

There is also the question of underlying principles in this case – should public utilities that are essential to human life and survival be privatized at all since the provision of such services is built around social objectives and not profit maximization?

In case of education, low cost private schools while being aspirational cannot be afforded by vulnerable communities, or even if they are, come at the cost of other necessities. They then obviate the objective of providing universal access to same quality education and aggravate inequalities of caste, gender and class. In the other case of the other essential service, that of Health being privatised, the issues that come up repeatedly are those of affordability, unnecessary procedures, and the actual quality of the health provider. The National Health Policy 2017 even proposes “strategic purchasing” of services from secondary and tertiary hospitals for a fee so that people can go to both public and private healthcare providers for treatment.Promoting Democratic Spaces: , With businesses taking state roles), l there needs to be an expansion n of the businesses role vis-a-vis human rights in terms of actively protecting human rights while respecting it in principle. For this, businesses need to protect democratic spaces both internally and externally. This would mean respecting and supporting workers right to unionize to help change working situation that is beneficial to workers as well as promoting their voice in decision making. Externally, this would mean using their voice and influence to promote the shrinking civil society space as well as other democratic freedoms, rule of law, good governance since these safeguards are also promoters for corporate growth.

Full Disclosure: -Increasing transparency in business led processes and activities through effective disclosure practices, is another way of embedding and realising Human Rights in business operations. While the SEBI move of non-financial reporting for top 500 companies is welcome, it should be extended to all companies including SME’s. In addition, businesses should proactively put in public domain all policies and programmes that affect public interest and have an impact on people’s rights. They should also share how they identify and respond to human rights issues and risks in their operations and supply chains. Policies covering human rights across supply chains including suppliers and sub-contractors should contain human rights standards to be

followed and the companies should share how these are being audited/enforced. This transparency will become a necessary precondition for specific standards of accountability that the NAP should include. While there should be a push for a code of ethics that Corporates should hold themselves accountable to, the measures of accountability need to go beyond self- certification. The role of certification agencies needs to be looked at in this regard. They need to be independent from corporate influence. There should be no dilution of standards. State Institutions engaged in the process (SEBI, Ministry of Corporate Affairs, ROC)need to strengthen accountability standards and approaches demanded from businesses.

Experience from the GroundThe study about the NHPC project in Manipur, revealed that the community around the operations were particularly aggrieved as the company concealed details of environment and social impact assessments from the general public and hence, did not disclose the larger implications on the rich flora and fauna diversity of Tamenglong Areas remains and on the indigenous peoples.In Bangalore participants observed that Human right is no longer a taboo word. Every business, small/big/public/private need to have human rights at the as a part of its core and only then, human rights will be respected and protected. This can be done by policy commitment, human rights due diligence, meaningful consultation and dialogues with effected group and transparent communication. 95 percent of the top 100 companies claim to have a human rights policy and websites and publically available data demonstrates compliance on Human Rights. The challenges, however, is faced by the small businesses and petty contractors, who experience high cost in ensuring compliance.In Jaipur, participants putting forth the point of view of the suppliers remarked “We are also suppliers, we are also human. I do not get any reimbursement from the government. My work is on the line and I am squeezed from all ends. It is my money on stake. The rejections and cancellations that I face will also affect the labour that I hire. Will this not affect the labour and their families? If you take a look at our purchase orders, you would stop discussing this. This investigation is only one sided.” Responding to this, participants highlighted that this was exactly why the focus needed to shift towards a policy that governs the value chain.

Real Inclusion: - While being transparent, the businesses should also ensure decision making processes as well as actual implementation of the decision should be done in an inclusive manner. Inclusion should ensure participations and communication with relevant stakeholders, both internal and external, and especially with those whose rights may be affected/belonging to vulnerable groups. The engagement process should be inclusive, participatory, and transparent, in order to provide meaningful opportunities for their views to be taken into account in relation to planning and decision making for projects or other activities that may significantly impact local communities.

Companies should address issues of people affected by their operations and should be held responsible for human rights abuses that arise in their global operations. And in this scenario regulation and transparency of the lobbying process would also be crucial for ensuring protection of Human Rights. While, lobbying in India is unregulated, it is not illegal. Many interest groups actively lobby with the government for change in laws and policy decisions. In

the past the cases like the 2G scam and Walmart’s disclosure of its lobbying expenses in India, have raised concerns about the unethical manner in which corporate are engaging with the government for influence policy decisions. Therefore, in order to reduce influence of business over States and agencies through unethical engagement practices, legislations would be needed for requiring politicians and civil servants to disclose all meetings with corporate actors, including informal meetings, and the issues discussed. Companies on their part should be required to adopt a code of conduct, which to act as a whistle blower for any unethical practices being adopted to again political favours. Transparency in the process would guard against creating barriers to access for ordinary citizens wanting to engage with their political representatives.

In conclusion the changing demands that companies move from the framework that merely requires than to ‘respect’ of human rights to a norm that encourages uptake of responsibility by the businesses as a promoter and protector of human rights. This means creating centres of excellence and promoting them, going beyond their own area of operation and championing them in areas beyond ‘home’ e.g. there should be zero tolerance of sexual harassment by businesses, which will include areas beyond just the workplace. Businesses could also create standards relating to human rights and conform by these which go beyond those required through compliance measures.

Pillar III – Access to Remedy

Context

The UNGPs require States to take appropriate steps to ensure access to effective remedy for those affected by business-related human rights abuse. This applies to both judicial and non-judicial grievance mechanisms.In India, while we have an extensive judicial set up with judicial bodies at both local and central level, non-judicial mechanisms like the NHRC also co-exist to look into Human Rights Violations. Instances, however, of lack of redressal are many, often provoking concerns about Human Rights and its safeguard in India.

There are several barriers to accessing justice that prevent victims of business– related human

rights abuse from accessing justice and getting redressal. The State should start taking steps to remove legal, practical or other barriers such as administrative fees or language barriers that may prevent victims from presenting their cases.

Building Capacities: -The barriers include the lack of knowledge and awareness about e existing remedial mechanisms l as well as the procedure involved.The government needs to invest in raising awareness amongst the various stakeholder like workers about the rules governing employment; such as , work timings, wages, being part of unions, the availability of business-related complaints mechanisms (for example the internal complaints committee) as well as the processes involved for recourse against violation. NALSA could play a role in raising awareness and building capacity more effectively. It should also include the interests of workers from the informal economy under its ambit.

Strengthening Judicial and Non Judicial Mechanisms: - While on one hand lack of awareness leads to obstruction in accessing remedy, on the other inffectiveness of the existing mechanism makes the realization of remedy a distant reality. Judicial mechanism in India have been a cause of frustration and disillusionment among the people, non-judicial bodies like the NHRIs, which are incharge of overseeing the active conformation to business and human rights in India, have been found to be lacking in discharge of their duty. The NHRCI has regularly come under criticisms for the political interference in its functioning.

Experiences from the GroundDuring the Consultation in Bhubaneswar, participants pointed out at the ineffectiveness of non-judicial mechanism particularly NHRC and Odisha Human rights commission and NGT. In 2013 POSCO case where forced land acquisition happened, people who were protesting against the same were lathi-charged and arrested. In NHRC hearing when the issue was raised, no action was taken against state violence. Institutions meant for safeguarding community interest in light of Human Rights violations are for namesake and take on an average 3 to 5 months to just register the case formally. NHRC rapporteurs in many instances never communicate with complainant and close the cases. NHRC and other safeguarding institutions are recommendatory bodies and therefore while prevention of violation is important, they can act only after the violation has happened.In case of Tata Mines- communities are asking for relocating the mining operations but the NGT, the body charged with the authority is practically defunct.

In a large number of cases, the Government’s failure to effectively address adverse human rights impacts is due to faulty enforcement of existing laws. The government needs to evolve ways to work on strengthening existing State-based judicial and non-judicial remedy mechanisms. There should be a particular focus on non-judicial remedy mechanisms since they are faster and cheaper than legal processes. In addition, an effective, appropriate redressal forum could be put in place with collaboration between the Ministry of Corporate Affairs (MCA), Ministry of Labour (MOL), and Ministry of Home Affairs (MHA) and other relevant stakeholders.

Experience from the Ground

Talking about huge number of cases, participants in Bhubaneswar observed that past crimes like Kalinga Nagar massacre for Tata Steel, murder of Adivasi leaders in Kashipur for Aditya Birla Hindalco, etc. are yet to be resolved. Justice is yet to be delivered. Companies and state agencies enjoy absolute impunity despite crimes committed against Adivasi people. Companies are not penalised for inciting violence against Adivasi communities. They suggested that central and state human rights commissions should create a section specifically for addressing human rights violations by corporations. Alternatively, like the National green tribunal, a separate legal body is required to address such.

Complete Disclosure: -Transparency is the key towards ensuring Human Rights are well guarded. Even with regard to remedy, there should be mechanisms to promote transparency about the event of volition, which will help in building the case for workers in case of a violation. These could include full disclosure requirements of supply chain, and electronic wage provision for the entire chain. There should also be transparency mechanisms for investment that show the basis for ethics/conformity with human rights.

Indigenous People’s Access to Justice in case of Displacement: - While in India, there is comprehensive Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013, most human rights violation are caused due to land acquisition and displacement. The Act6 provides for

“a humane, participative, informed and transparent process for land acquisition for industrialisation, development of essential infrastructural facilities and urbanisation with the least disturbance to the owners of the land and other affected families and provide just and fair compensation to the affected families whose land has been acquired or proposed to be acquired or are affected by such acquisition and make adequate provisions for such affected persons for their rehabilitation and resettlement and for ensuring that the cumulative outcome of compulsory acquisition should be that affected persons become partners in development leading to an improvement in their post acquisition social and economic status and for matters connected therewith or incidental thereto.”

The reality is a far cry from what is given in law. The situation is particularly vulnerrable for the nomadic tribes to find themselves at a loss to development activities. For redressal arising as a result of displacement due to industrial activities, there is a need to include nomadic tribes in fair and just compensation due to dislocation. The panchayat and other village bodies must be involved and play the role of actors who create awareness and monitor the situation with respect to human rights violation in their territory.

6http://www.legislative.gov.in/sites/default/files/A2013-30.pdf

Experience from the GroundAccording to participants in Bhubaneswar Tribal Communities find it impossible to file charges against companies or state because of severe antagonism by police. Legal aid for Adivasi communities is the most urgent requirement. Complaints often lead to Incarceration of Adivasi people for expressing their dissent against land acquisition by companies. Opposition to industrial projects is criminalised and people fighting for such cause are associated with Maoist movements. Police role in conflicts is extremely problematic, as it often acts against the victim than the perpetrator.

Rights of Bonded Labour: - Access to adequate and effective remedial mechanism of also particularly necessary for people found captured in bonded labour situations. Despite the Bonded Labour System (Abolition) Act of 1976, it still exists across many industries and regions in India. Since different regional states are responsible for the Act’s implementation, enforcement has been weak. And, it is an issue that is not even acknowledged. It is recommended that inclusive multi stakeholder groups be established to carry out audits to identify these instances of bonded labour. The participants of the survey must be incentivized to reveal data for best collection of information.

These situations call for a greater need to strengthen existing redressal mechanisms to ensure protection of human rights. For this the Government should take proactive step, as part of a NBA (National Baseline Assessment), toward an evaluation of existing State-based judicial and non-judicial mechanisms for providing remedy to victims to ensure adequacy and consistency with UNGPs; and explore options for reducing existing barriers that prevent victims of corporate human rights abuse from obtaining effective remedy. This should include evaluation of available grievance mechanisms for people affected by the operations of government-owned or controlled companies.

Way ForwardAn effective national action plan on business and human rights can be of immense advantage in the long term, throughimbibing a strong culture of human rights that protect the rights of all, especially those at the margins, and reducing business related risks and rights violations. However the following will need to be an important consideration before we arrive at an effective NAP:-Firstly, the principles underlying the development process of the NAP need to be grounded so as to make them inclusive, transparent and credible. This can be done by ensuring that all stakeholders participate in the development process, and there are active measures to specifically involve vulnerable groups (such as migrant workers, people with disabilities, indigenous communities, those from conflict affected areas), and ensure their meaningful participation, that is not hampered by power play. The summaries of these engagements should be publicly available for assessment of incorporation of inputs into the drafts and final plan.Secondly, the first pillar of the Principles framework is the states’ duty to protect against human rights abuses by third parties, including business. The government in this case needs to bring in stronger legal frameworks that incorporate human rights standards in domestic law,support independence of judiciary, and the creation and strengthening of national institutions for the promotion and protection of human rights. Strengthening legal frameworks will ensure that cases like Nestle, where it used the loose provisions in the law to downplay its own

irresponsible behaviour don’t occur. Specific measures could include a separate section in the National and State human rights commissions that deals with Corporate violations, or even the creation of a separate legal body like the National Green Tribunal. These would help in greater oversight as well as quicker addressing of issues. Where there is State involvement in development or investment projects (as in the case of PSU’s), it should also commit the public sector to fully integrating human rights considerations into all facets of its business operations and relationships.Thirdly, for citizens to be well informed about Corporate activities and their implications with regard to their rights as workers or consumers, and have the ability to raise their voices against potential or experienced violations, or express views and influence public policies, a vibrant civil society sector and an independent media are essential pre-requisites. Unfortunately, that space is shrinking in India. With a plethora of restrictive laws being passed in the recent time, licences being cancelled, the ability of civil society organizations to operate freely or receive foreign funding is severely hampered. Criticism of the government in the media has attracted penalties,including that of imprisonment. These civic spaces need to develop free of government constraint on the fundamental freedoms of association, assembly and expression. Fourthly, the UN Guiding Principles on Business and Human Rights (UNGPs) call upon businesses to make a public commitment to respect human rights, carry out human rights due diligence, and provide a remedy when things go wrong. The first step here could be that of promoting transparency in all aspects–starting with a disclosure on contributions to political parties. This will also obviate the apparent State Business Nexus which can result in gross violations, as in the case of anti-Sterlite protests in Thoothukudi earlier this year. Details of spending under the CSR funds could also be made available publicly. The State’s role here could be to support the creation of a monitoring agency which looks at how businesses implement UNGP principles in their operations, which will do away with certification agency under corporate control. To promote transparency, RTI could be made applicable for all information relating to business operations. Fifthly, to provide remedy for violations, the government besides strengthening quasi judicial mechanisms, needs to invest in the capacity building of diverse stakeholders to build their understanding on the issues, provide free legal aid to victims of violations and support mechanisms for speedy redressal.

Case Studies

Case Study 1 - Tea plantation workers in Assam

Assam is a major producer of tea for global consumption. The tea estates employ thousands of people for the purposes of tea plantation. These people reside on the estates and the estate is responsible for their needs and requirements. In essence, the estate plays the role of a quasi-state body. This fiduciary relationship between the owners and the workers provide the owners unfettered power of administration over the estate workers. The total workforce exceeds two million workers in these tea gardens and a vast majority of these workers are illiterate.i

Tribal Migrants: The exponential expansion of tea plantation economy in Assam in the late 19th century necessitated the demand for plantation labourers as the new economy was entirely labour intensive. This led to the import of labourers from outside the province, mostly from the densely populated provinces of central and east India. Therefore, the majority of the

labour force constitutes of landless tribal peasants who were coerced into migrating in order to work at the tea gardens. As the workers live in impoverished conditions, they encourage their children to join the work, making it a ‘family business’. The workers largely comprise of (a) tribals of Central and East India, not considered as scheduled tribes in the state they are currently residing; (b) being migrant and living within the plantation, the entire gamut of their life is within the spaces of the plantation; and (c) as a result of generations of workers working in the tea gardens, they do not have any other place where they can make a living.

Women workers, in addition to being tribal and migrant, face the burden of patriarchy. Women are underpaid in comparison to men and are entitled to almost no benefit as a part of their employment scheme.ii There are actually more women workers than male workers. (reference)

Do Companies respect Human rights of Workers? Often, the power, owing to fiduciary relationship, is abused to minimize costs and as such the workers are subjected to improper treatment, excessive labour, and deprivation of basic facilities. iiiDespite generations having lived in the same estate and same house, tea workers do not have a right to their homestead.iv They can be evicted at any moment by the management from their houses if they protest about their conditions of work or if they refuse to work for the paltry wages that the employer pays.Moreover, the structure of their housing are very old and are in extremely poor condition which with many houses holding leaky roofs, which during rainfall, leads to flooding of the houses.

A consultation organised with workers indicated that employers do not respect human rights (reference Guwahati meeting report). Wage revision occurs after a number of years. When they occur, they also increase the task corresponding to wage increase. Their right to safe working conditions is denied. There are no toilets for women, and even men, at the work place. There is no rest time during the work. “The company often deliberately do not keep toilets, fearing that workers would take rest and spend time in toilets.lunch-times are very short. There is no space for children to be brought to workspace. Companies use loopholes to pay low wages- like those applicable to adolescent workers are paid to 20-22 years old workers. Most workers are paid wages on a daily basis and have strict working hours. They do not have the benefit of paid leaves (including on Sundays) and are not entitled to any sick leaves. Owing to daily wage system, women are left with no choice but to work until the eighth month of pregnancy. Even after childbirth, they are forced to leave their young infants at home owing to the lack of day care nurseries on the estate. The ones that are active, are unhygienic, unresponsive and tend to neglect the needs of the children. Lack of toilets for women and crèches for children deny women’s active participation in work. There is workers’ representative, but is often selected by the Company. Most often they become representative of the Company, rather than of workers. There is a Lane Chowkidar, who is the representative of Company, but often comes from same community. While he does become power centre; but when he is told about the issues of workers, he displays “helplessness”- with sense of belongingness with community by stating, “people like us cannot demand all these things”. The Grievance redressal system is non-existent. Many of their complaints are dismissed or ignored

Right to health of workers is also denied. Workers are also made to spray pesticides in the tea gardens. Aside from pesticides, there are liquid manures, micronutrients, growth promoters, etc., that are sprayed which have an adverse impact on human health. As the workers are often

illiterate, they are unable to read the correct instruction for the proper usage of the pesticides. That coupled with improper safety equipment, hampers their health directly and they are made susceptible to diseases. Workers widely reported that the quantity of water to which workers have access is a problem, as there are not enough drinking facilities for all workers at the labour lines and that those that are available are unhygienic. The rations (wheat flour, rice, and tea leaves) provided by the company are often of very bad quality and not sufficient. Workers are highly dependent on the rations they receive for their food consumption on a monthly basis and so any change in their work status can result in severe hardship.vMost of the workers do not wish for their children to work in the plantation farms. However, the circumstances force the children to work in the garden itself, despite being aware of all the wrongs they have to face.

Does the State protect the Human Rights of Workers? It is interesting that workers do not get automatically included into all government welfare schemes as they are on ‘company property’ and the company has assumed all control regarding the workers. Even if the panchayat wishes to introduce a development project for the welfare of these workers, they are first required to obtain a no objection certificate from the tea company. With the government being uninvolved and the company disregarding the necessities of the workers, they are left in a vulnerable position. For example, with respect to the lack of electricity. The workers do not enjoy ‘consumer status’ and are unable to get electricity lines from the government directly.vi

In the case of these workers, the state has taken a ‘hands off’ approach and delegated their duty of governance to the corporate tea estates. There is also a Plantation Labour Act, 1951, which was passed to promote the welfare of plantation workers. The workers are entitled to proper housing, nutrition, water, healthcare and other facilities that are essential for a quality life. The state has failed in protecting their rights and delegating their governance responsibility to the corporate houses who have constantly neglected basic protection and facilities. However, even then the gravest injustice faced by the workers is the fact that despite the clear violation of the worker’s rights, they do not have any access to redressal. Their plights are not entertained by the management and more often than not, their demands and requirements go completely ignored. There is a position of a welfare officer but the welfare officer is concerned only with the welfare of the managers and not that of the workers. If a plantation worker is to raise their voice in opposition to something, they will face consequences, severe enough to financially handicap them and their family. The union pays no heed to their needs and act like an institutional stooge of the tea estates.

Case Study 2 - Tobacco Industry

The tobacco industry is one of the major contributors to the Indian economy with its estimated value set at $11 billion. In India, this ‘killer industry’ accounts for about 12,000 deaths annually which is equivalent to 24% tobacco related deaths. The country faces an economic burden of Rs. 2.5 million that arises out of tobacco consumption and is spent on direct medicinal costs, absenteeism for medical treatment, and loss of income owing to untimely premature death. The industry is directly responsible for a huge number of diseases and deaths in the country.

Affected GroupsThe tobacco and beedi industry employ a large number of children who are underpaid and made to work in harsh conditions in order to meet the demand of the products. At the same time, an estimated 50% of tobacco consumers are school going children, working children, slum dwellers or child labourers. The workers of tobacco factories are more susceptible to cancer than an average individual due to constant exposure to certain chemicals. However, there are no measures to protect their health or on failure of which, there is absolutely no recourse for medical ailment.

Violation of Human Rights and mere compliance with CSR obligationsThe tobacco industry is provided sufficient support from the government to thrive in the market due to their lax policies vis-à-vis tobacco regulation. The extensive lobbying by the industry has helped it gain entry into critical government departments and in many cases they have also been inducted into political parties and parliament as its member. Due to an ever increasing demand, they employ children to maintain supply. Minimum wage requirements are completely ignored and the workers despite working in a hazardous environment are critically underpaid. Tobacco companies are required by law to fulfil their CSR obligations. They have the discretion to comply with their CSR obligations in any manner as they deem to be beneficial to their business. The government holds stakes in the tobacco industry and owing to this conflict of interest, stringent laws are not introduced for the regulation of this industry.

Under the new Companies Act, 2013, it is mandatory for companies to spend at least 2% of the company profit on corporate social responsibility (CSR) activities. The purpose behind the introduction of this law is for companies to serve the interests of society by taking responsibility for impact of their activities on stakeholder, communities, and the environment in all aspects of their operation. The sale of tobacco causes enough detriment to society as it is and it is only reasonable for them to have a rigorous CSR culture. However, this is not the case and the tobacco companies exploit the provision of mandatory CSR for commercial purposes. WHO stated that CSR by tobacco industry is a marketing strategy that only furthers their interests and provides them with more visibility- something that is effective in creating larger market. As a part of its CSR activities, the industry has been engaging with children primarily by organising various events which invite mass student participation. Following a petition, a government order was passed which directed schools to refrain from participating in CSR activities organised by the industry. This move was made with the aim of preventing tobacco companies from infiltrating the school premises. It is imperative that this order is fully implemented until legislation is passed to that affect. As of now, evidence suggests that governments in India have conflicting interests: on the one hand they are adopting tobacco control measures and other the other they are promoting the

tobacco industry. Until, the various existing conflict of interest are resolved, tobacco lobbying will be a common phenomenon and infringement of human rights and good governance will be a collateral damage.

Case Study 3 – Pesticide use and Production

Production and usage of pesticides has had undesirable effects on human lives and the environment. In particular, there is an excessive use of pesticides in agriculture which has been the root of inter alia health issues such as pesticide poisoning, increased incidents of cancer, etc. The over usage of pesticides has resulted in the contamination of produce, water, and the soil. This has adversely impacted the health of consumers (humans and animals).

Affected GroupsOut of 33,318 reported cases of cancer, 14 thousand was found be caused by the use of pesticides along the cotton belt (Malwa belt) stretching from Muktsar to Mansa through Bhatinda.The exponential rise in cancer can be attributed to the indiscriminate use of agricultural chemicals. Due to injudicious use of chemicals in the region, the soil is high in persistent organic pollutants- nitrates, phosphates, uranium and other chemicals. Naturally, these chemicals also make way into the produce and make it unsafe for consumption. The exposure and consumption has increased the risk of cancer at an unprecedented level.

ViolationsThe situation of the farmers vis-à-vis pesticide use and production is in dire need of reformation. Monsanto Human Rights program claims to have improved the conditions of the workers. They declare that they have been successful in eradicating child labour in their line of business by introducing ‘no child labour’ clauses and providing other incentives. Amongst other things, they have introduced an anti-venom programme and have equipped local villages with anti-venom kits and related medical facilities with around 500 medical professionals. The program also introduced protection against pesticide use by providing protective kits, fencing of open wells and identification and remediation of electrical hazards as these situations are quite common in rural areas and have a potential risk. However, it is reported that these claims are not backed with ground level activities and that in reality, these programs are a hoax.

There are many committees set up by the government to tackle issues pertaining to agriculture and farmer welfare and yet this issue remains unsolved. The state has not taken action against this growing problem. There are several acts and rules which govern use and regulation of pesticides and insecticides but the law is obsolete and has not been amended since the time it came to existence. As a result of the lack of regulation, the state has put the farmers in a grave threatening situation. Class I pesticides are banned in many countries including the EU however, is used and produced openly in India. 18 Class I pesticides are registered for use under the Central Insecticides Board and Registration Committee (CIBRC). The Directorate of Plant Protection, Quarantine and Storage, a body under the Union Ministry of Agriculture and Farmers Welfare, Class I insecticides (pesticides) accounted for close to 30 per cent of India’s total consumption of insecticides (pesticides) by weight in 2015-16.

Failure of the State

The farmers are inept at scientific pest management. There are cases of accidental death of farmers due to poisoning, due to their lack of knowledge of scientific waste management. They do not understand the perils of constant exposure and consumptions of these chemicals. Neither the government nor the manufacturers offer any ideas or solutions to overcome this feat. While farmers are desperate to protect their crops, farm workers want to earn maximum money during the spraying season. In the balance of priorities, most farmers spray a mixtures of pesticides to save time and money which results in a harmful combination of chemicals. The state has not adopted a progressive approach to deal with pesticides regulation and offer no sensitization to the farmers whatsoever. Pesticides manufactures take advantage of the lack of knowledge in the farmers by lobbying their monetary interests. The farmers have extensive knowledge on methods of crop management and land use but have lack knowledge on chemical protection of crops. There are more than 166 pesticide producing companies in India, which produce harmful chemicals and sell it to the farmers at a lesser price which is incentive for the farmers to buy. Despite an established system, the government remains a mute spectator and allows commercial lobbying of pesticides at the cost of human life.

Takeaways for National Action PlanThe first and foremost priority of the government is to set up an effective regulation for pesticide use in the country. Class I pesticides must be banned in India as well, as is the case in many other countries. The use of class I pesticides is the major cause of the high number of cancer cases. The lobbying exists due to dissemination of misleading information about the effects of pesticides. This needs to come to halt and there should be transparency with regards the spread of correct information. The premise of information and usage method should be scientific base of use and not commercial considerations. It is the responsibility of the state to curb the number of incidents of cancer and deaths arising out of pesticide mismanagement.

Case Study 4- Child labour in Rajasthan

Child labour is defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. It consists of work that is mentally, physically or socially dangerous and harmful to children and/or interferes with a child’s ability to attend and participate in school fully by obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work. Child labour is a predominant practice in India, especially in factories and manufacturing plants. Jaipur is a hub for child labour where a lot of children are employed full time in various manufacturing enterprises. It has been a major destination for child trafficking and trade.

Affected GroupsSince 2011, at least 3500 children were rescued from different places in Jaipur where they were found indulging in labour. The children are exposed to occupational and safety hazards which are detrimental to their physical and emotional development as well as cognitive growth. Of the sample space of children rescued so far, more than 82% of children are trafficked from Bihar. These children are taken from their homes by appealing to their financial vulnerability. The families send their children with the traffickers in the hopes of improving their family income. 8% of the rescued children belong to age group of 5 to 9 years; 55% of them belong to the age

group 10 to 14 years and 37% of them are children who are 15 years and above. The number of child labourers in Jaipur is increasing significantly despite state bodies having taken cognizance of the matter.

ViolationsKey industries where children are widely employed include primarily bangle making, sari work, embroidery, jewellery making, and gem polishing. The children workers are all placed in a small room where about 10-15 of them are made to sit together and work all day with inhumane work timings for a meagre wage (below minimum wage as prescribed by state). These children do not have any time for leisure or to engage in normal child-like activities. Their development is significantly hampered and they are exposed to permanent physical disorders and have a long term effect on their health. Some working conditions lead to loss of vision (bangle making and other furnace industries), development of respiratory problems and other various problems. They are also exposed to harmful chemicals which can potentially cause many skin related diseases. These children are prevented from going to schools or any educational centres. As a result of absence of education, the children are very likely to be stuck in the same profession for a long time. Constant exposure in these environment leads to permanent disorders as a result of which act as serious impairments and render them unable to work in other professions later on.

As the number of cases of child labour are on the rise, is is evident that law enforcement is lacking and is not stringent at all. Traffickers approach the families of the children and make false promises of prosperity and convince them to send their children with them. The families, in their state of poverty, send the children to Jaipur in search of employment. They are made to work in extremely unsafe and hazardous environment

Key Takeaways for National Action Plan

The social conditioning of the society enables employers to hire children workers. The society at large displays acceptance of child labour. This is mainly due to popular narratives that are created by the employers by appealing to the mass. They are convinced into believing that sending their children to work at the age will result in skill development and ultimately, poverty alleviation. The workshops that employ children usually supply products in the domestic market. The supply chain of these products is neither transparent nor regulated. While some of these products are bought and sold by ‘big brands’, there isn’t enough material to actually impute liability on the brands. More so, due to these workshops being informal, they cannot even be identified due to lack of traceable linkages. The accountability of the companies is diluted due to a chain of contracting and sub-contracting, practically absolving them of all liability. There is no state action with regards to these cases as the products contribute to the economy and hence, despite implementing an obsolete trend of administration, the workshops escape scrutiny by the government and law enforcement agencies.

The consumers on the other hand, are only concerned with the final product in hand. Until and unless, there is a conscience effort on the part of consumers to boycott products that are an outcome of exploited children, there will be no curbing this modern day slavery.

Case Study 5 - The Loktak Project

Ithai Barrage, a hydropower project was developed by the National Hydroelectric Power Corporation (NHPC), a state owned company developed a project in Manipur. It has a capacity of 105 megawatts and was commissioned in 1983. The barrage managed to impound the waters of Khuga river and converted Loktak into an enormous artificial water reservoir. The purpose of the project is to generate hydro-electricity. About Rs. 750 crores are generated annually from this project which is substantial for the state of Manipur. The project required a substantial foundation of resources and caused a flooding of approximately 50,000 to 80,000 hectares of land- both upstream and downstream.

Affected GroupsHundreds of local villagers belonging to that area were uprooted and displaced. Due to the change in their location, they were compelled to give up their traditional lifestyle as fishermen resulting in unemployment and deterioration in their socio-economic conditions, leaving them without a stable source of income as they were prior to being displacement. As a part of this project, natural water sources were manipulated and a channel was created to drain out the lake causing the fish population to perish leaving the fishermen with a lack of livelihood options. This is a major impediment on the locals’ means of livelihood as they now find themselves in a new location with a new lifestyle and are unable to resort to their earlier lifestyle of fishers. In fact, the state has lost its revenue on the sale of indigenous fish production.

Violation of Human RightsObjectively, the Loktak project as a business model is profitable and generates substantial revenue through sale and production of electricity. However, the project completely disregarded the displaced fishers and farmers and did not pay any attention to rehabilitate and resettle the displaced locals. Now, even after more than three decades, there has been no improvement in the life of the displaced locals and the state has failed to provide them with any support whatsoever. The right to life of these locals are infringed and the state has failed to provide them with basic necessities to live a dignified life as guaranteed by the constitution. Moreover, the state has been constantly threatening the local fishers with eviction citing instances of degradation of the lake.

State Action ResponsibilityIt is the fundamental duty of the state to provide just and fair compensation upon acquisition of any private land to the owner. In the present case, the state did not provide the fishers with a fair compensation or introduced them to an alternative means of livelihood. The locals were stranded in another place with no source of food or income. They were moved to non-agricultural land where growing for sustenance is an unlikely option.

During monsoons, the company is at its most efficient with high production. The locals on the other hand face hardship and suffering. They are not even provided employment in the power plant. They suffer from floodsthat enter their homes and they do not get any assistance from either NHPC or the state even though a significant amount of revenue is generated off the project. The state is in a blatant breach of the right to life of these locals who at the moment are ‘stranded’ with nothing. The state reserves the power to evict them under the Manipur Loktak Lake (Protection) Act, 2006. This act vests the power in the state to make decisions for the

development and protection of the lake. Through this act, the state is empowered to evict the locals or carry out any other executive action in order to ‘develop’ and ‘protect’ the lake. The state has reportedly misused the power to silence the displaced locals from raising their basic needs and demands. The fishermen have been forcefully uprooted from their traditional lifestyle and livelihoods and are coerced into not raising their voice.

Recommendation for the National Action Plan Before making a decision that affects an entire class of people, there must be mandatory pre-project consultations with participation from all primary stakeholders. The primary stakeholders must be given the position of partners so they can be benefitted for annexation of their lands and lifestyle. Free Prior Informed Consent (FPIC) must be properly implemented so that unilateral exploitative decisions are not taken against the locals on part of the state. There is an existing legislation that provides for provisions of resettlement and rehabilitation. The provisions must be followed positively and the people must be provided with alternative livelihoods as promised by law. It is also the responsibility for the said businesses to enhance human livelihood in lieu of encroachment of their private lands and territory.

Base Study 6 – Bonded Labour

Bonded labour or debt bondage occurs when a person is forced to work to pay off a debt. They are tricked into working for little or no pay, with no control over their debt.Most or all of the money they earn goes to pay off their loan. The value of their work invariably becomes greater than the original sum of money borrowed. Bonded labour is a common practice is many businesses and industries. It is prevalent in parts of Rajasthan, UP, Bihar mainly amongst workers employed in hospitality business, sewage cleaning, brick kilns, etc. For several reasons, some beyond their control, individuals belonging to this strata, require to take loans or borrow money from moneylenders. Upon their inability to repay the amount, the debtee is forced to repay the loan through equivalent working hours. The employment extends to their children if the debt amount remains unpaid and passes onto generations until the amount is paid in full. The workers end up working a lot more hours than the equivalent of the originally borrowed amount.

Affected Groups and Human Rights ViolationsBonded labour continues to be a menace to numerous individuals involved in physical work as their means of livelihood. In terms of their wages, they are critically underpaid and the wages they receive are well under the minimum wage as prescribed by law. Furthermore, they are made to work in an unsafe work environment where they are exposed to occupational and health safety hazards. As they do not have a choice with respect to their employment, they are coerced into working in extremely unsafe, uncomfortable environment often putting their health in jeopardy. There are substantial number of female workers employed in this sector and they are subjected to multiple accounts of sexual harassment. Apart from women, children are also employed in this sector with the aim of relinquishing the debt amount faster. The children are underpaid and are made to do heavy labour despite their age. This phenomenon hampers their developmental growth and may cause concrete health problems. While there is a huge workforce employed in these sectors and their rights are habitually disregarded, the workers

are also deprived of their right to collective bargaining and raising their voices in this regards only leads to repercussions financial and otherwise.

Violations from a business lens The root of human rights violations at such a level is rooted in the traditional feudal system which is still informally implemented in this sector.14 of the top 100 companies surveyed on the India Responsible Business Index did not even disclose having knowledge systems on prevention of child labour, forced and involuntary labour. The current system is heavily influenced by feudalism and the modus operandiof the employer is byperpetrating fear into the workers and maintaining a captive labour force. The three important needs for a landlord in the traditional system included regular and sustainable supply of labour, low wage costs and captive labour. The employers source these factors, generally from the lower castes due to their lack of resources, dependency on debt and limited employment opportunities. The caste system ensured the supply of this labour to an upper caste landlord. With time, the emergence of modern occupations and with agriculture no longer being the primary forms of employment, the contractor used “advance” payments to ensure that there is a sustained supply of labour at cheap cost, held captive through ‘fear’. The companies are concerned merely about production and profits and as such demand excessive labour from the workers. Hence, the recruitment process is delegated to a sub-contractor who is solely responsible to contract with workers and place them in the factories/workspace. The payment is typically routed through the sub-contractor and the company absolves itself from all liability as they are not privy to the contract of employment. Additionally, the sub-contractors are usually from the same place as the workers and one of their roles is to ensure that no worker escapes and returns home without fulfilling their work obligations- as set out by the company. Status quo is reinforced every now and then and the company aims to maintain the hegemony between them and the workers to smoothly run operations in the foreseeable future.

State ResponsibilityPractice of bonded labour and other forms of exploitation are practices that are explicitly prohibited in the constitution. It is a fundamental right that is guaranteed by the state and the failure of this can be imputed to the state directly. There are various committees, departments, ministries with shared jurisdiction to deal with matter related to bonded labour. The problem arises from the existence of complex laws that is beyond the comprehension of the workers. Further, the redressal mechanism in place also suffers from the flaw of being far too complex and not accommodative of the aggrieved party. This results in conscious perpetuation of status quo and no protection of rights or social mobility of the workers on part of the state. The state is looking the other way whilst its subjects are being exploited and their rights are being infringed. The state is not fulfilling its constitutional obligation by not providing and enforcing something that is enshrined in the constitution as a fundamental right.

Takeaways for National Action PlanThe state is unwilling to publically acknowledge that bonded labour exists even today. Several laws and policies exist and the initial recommendation will always be around the issue of more stringent implementation, but the biggest stumbling block is the lack of acceptance and political will to acknowledge the existence of modern forms of bonded labour. The state has the primary responsibility to ensure the welfare and take strict cognizance of any human rights violation.

With respect to companies, of the 100 top companies, in 2017, only9 companies have assessed the situation of workers’ rights and labour issues. 65 of the top 100 companies have extended their “no child labour” policies to their supply chain. 49 have extended these policies of human rights to their supply chain. The best way to move forward is to build a transparent supply chain that comes with accountability. The possible solutions could range from a regular check through satellite imaging or identifying bonded labour through a better understanding of the concept and then ultimately, eradicating it completely.

iDipaliBaishya, History of tea industry and status of tea garden workers of Assam, International Journal of Applied Research, August 2016iiShodhganga, SOCIAL AND POLITICAL PROBLEMS OF TEA-GARDEN LABORERS: CAUSES AND ORIGIN,

iiiCentre for Women’s Studies , STORIES BEHIND A HOT CUP OF ASSAM TEA Listening to the Voices of Women Labourers in the Tea Gardens, December 2017

ivIbid.vSupra Note at i. .vi Global Network for the Right to Food and Nutrition, A life without dignity – the price of your cup of tea; Abuses and violations of human rights in tea plantations in India, May 2016