Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - India (Ratification: 1960)

1. The Committee notes the communication dated 29 August 2006 received from Hind Mazdoor Sabha, a workers’ organization, which was forwarded to the Government on 28 September 2006. The communication states that protection under article 14 (equality before the law) and article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) of the Constitution did not cover private sector employees. Widespread discrimination against Dalits, adivasis and women in the construction and fishing industries, as well as in agriculture, is alleged. The Committee requests the Government to provide information in reply to these matters raised by Hind Mazdoor Sabha in its next report.

Discrimination based on social origin

2. The Committee recalls that caste-related discrimination in employment and occupation is a form of discrimination based on social origin that is contrary to the Convention. In its previous observation, the Committee stressed that the practice of untouchability, which continues despite its prohibition under the Constitution, needs to be addressed effectively if discrimination in employment and occupation against Dalits based on their social origin is to be eliminated. In this context, the Committee noted recommendations made by the then National Commission for Scheduled Castes and Tribes, including concerning measures to strengthen the enforcement of the Protection of Civil Rights Act, increased cooperation of the responsible public authorities at the various levels and broad awareness-raising campaigns.

3. Given the seriousness and magnitude of the problem, the Committee regrets that the Government’s report does not provide any information in reply to the Committee’s specific requests. The Committee therefore urges the Government to take action with a view to eliminating discrimination in employment and occupation against members of the Dalit population and promoting equality of opportunity and treatment for them, including through strengthening legal protection and socio-economic empowerment, and to inform the Committee on the measures taken in this regard. The Committee also reiterates its request to the Government to provide information on the steps taken to raise awareness among workers and employers of the issues involved, particularly the need the reject and combat the practice of untouchability and caste-based discrimination at work. The Committee requests the Government once again to indicate the steps taken to seek the cooperation of workers’ and employers’ organizations in this regard. In addition, the Committee requests the Government to provide a copy of the most recent report of the National Commission for Scheduled Castes.

4. Manual scavenging. With regard to the practice of manual scavenging and the fact that Dalits are usually engaged in this practice due to their social origin in contravention of the Convention, the Committee noted in its previous observation that the Tenth Five-Year Plan (2002-07) refers to a nation-wide programme for the total eradication of manual scavenging by 2007, including state-specific plans of action concerning the construction of wet latrines and provision of alternative training and jobs to scavengers. In its report, the Government confirms that a National Action Plan for the Eradication of Manual Scavenging is being implemented and states that it is “trying its level best to advise and recommend steps which may lead to the total eradication of manual scavenging by 2007”. It is also “trying to ensure that State Government, railways and local authorities apply and enforce the prohibition of manual scavenging” as contained in the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. The Government also recommended the launching of a national awareness-raising campaign through the media. Statistical data on the prevalence of manual scavenging is under preparation.

5. While the Committee notes the Government’s statement that it agreed with the Committee’s recommendations regarding manual scavenging, it notes that the report falls short of satisfying the Committee’s requests for information made in the previous observation. The Committee requested information on the specific measures taken concerning a number of issues. The Committee is thus not in a position to assess the progress made in ensuring that the practice of manual scavenging, which goes hand in hand with serious and systematic discrimination based on social origin contrary to the Convention, is being eradicated as soon as possible. The Committee, therefore, urges the Government to provide detailed information regarding the specific action taken by the central Government and at the level of states and union territories to put an end to the practice of manual scavenging and on the progress made in the identification, liberation and rehabilitation of scavengers, including statistical data. In this context, the Committee strongly urges the Government to take decisive action:

(a)   to ensure that the state, local and railway authorities apply and enforce the prohibitions contained in the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, and that the penalties provided for their violation are effectively imposed (please indicate the number of prosecutions initiated and the number and nature of penalties imposed);

(b)   to evaluate the effectiveness of the existing schemes for the construction of flush latrines and the rehabilitation of manual scavengers;

(c)   to launch or expand public-awareness programmes for the population and educational and training programmes for the authorities involved, in order to promote the changes in attitudes and social habits which are necessary to bring about the elimination of manual scavenging.

The Committee hopes that the Government’s next report will contain information on the specific action taken on these matters. In addition, the Committee requests the Government to provide a copy of the National Plan of Action on the Eradication of Manual Scavenging and information on its implementation and the results achieved thereby.

Equality of opportunity and treatment of men and women

6. Trade union comments. The Committee recalls the communication received from the Centre of Indian Trade Unions (CITU) dated 24 August 2005 alleging that a public sector undertaking was implementing a special voluntary retirement scheme for women with a view to reducing the workforce. Further, CITU stated that the same undertaking gave jobs to male heirs of deceased employees, but refused to give jobs to female heirs.

7. The Government states that in the undertaking concerned, Coal India, a voluntary retirement scheme had been introduced in 2002 and was operative until 31 December 2003. The Government emphasizes the voluntary nature of the scheme and that it offered an opportunity to unskilled female workers to receive full termination benefits. The management had also offered employment to eligible sons of female retirees. With regard to the allegation that the undertaking refused to hire female heirs of deceased employees, the Government suggests that the fact that the company in question employed about 30,000 women did not support such a conclusion. However, the Government also states that women cannot be deployed in underground mines and that “therefore, in general, male dependants, if available, are preferred for employment”.

8. The Committee further notes the Government’s indication that most of the women employed by Coal India are appointed under the National Coal Wages Agreement (NCWA). The Committee notes that clauses 9.3.0 to 9.3.4 of the NCWA deal with providing employment to one dependant of a worker who died while in service. A dependant for this purpose is defined as “the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no direct dependent is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependent on the earnings of the deceased may be considered to be the dependant of the deceased” (clause 9.3.3). In order to be considered for employment, dependants “should be physically fit and suitable for employment and aged not more the 35 years” (clause 9.3.4). Special provisions exist for employment and monetary compensation for female dependants (clause 9.5.0), including provision for placing male dependants over 12 years of age on a roster for future employment in case employment is not offered to the female spouse of a deceased worker. The Committee understands that these clauses of the NCWA await revision in view of several decisions of the Supreme Court.

9. The Committee recalls that the Convention aims at the elimination of discrimination in respect of access to employment, terms and conditions of work, which includes welfare facilities and benefits provided in connection with employment, as well as with respect to security of tenure. Differential treatment based on sex is only permitted in respect of a particular job, based on the inherent requirements thereof. While noting that the scheme in question is no longer in effect, the Committee observes that voluntary occupational retirement schemes aiming at the retirement of women only would not be compatible with the principle of equality of opportunity and treatment of men and women, as provided in the Convention. The Committee also considers that giving preferential treatment to sons of early retirees, as well as to male dependants of workers who died while in service is discriminatory.

10. The Committee requests the Government to the take the steps necessary to ensure that voluntary occupational retirement schemes are designed and implemented without discrimination based on sex. With regard to the provision of employment to dependants, the Committee requests the Government to provide information on the steps taken to ensure that male and female dependants benefit from such a measure on an equal footing. It also requests the Government to provide information on the revision of the clauses of the NCWA pertaining to the provision of employment to dependants and the measures taken to ensure that these clauses are in accordance with the principle of equality of opportunity and treatment of men and women.

11. Measures to promote gender equality in employment and occupation. In its previous comments, the Committee noted from the 2001 census data that women’s participation in the organized sector, the public sector and government employment still remained very low, as compared to men. In its report, the Government states that a plan of action to operationalize the 2001 National Policy for the Empowerment of Women has been finalized and submitted for Cabinet approval. The Committee requests the Government to continue to provide information on the progress made in implementing the National Policy on Women as it relates to the promotion of gender equality in employment and occupation, including information on the impact of any measures taken. It requests the Government once again to provide information on the specific action taken or envisaged to promote women’s equal access to employment in the organized and public sectors, as well as government service. Further, the Committee requests the Government to provide updated information on the measures taken or envisaged to promote women’s access to vocational training and income-generating activities, including measures and programmes targeting Dalit and tribal women. Finally, the Government is asked to keep the Committee informed of the progress made in adopting the legislation prohibiting sexual harassment.

[The Government is asked to supply full particulars to the Conference at its 96th Session and to report in detail in 2007.]