Ignoring the woes of the MGNREGA workers, Central government has filed an appeal in the Supreme Court against the landmark judgement of Karnataka HC that no MGNREGA worker could be paid less than the minimum wage.
Strongly condemning the move, National Advisory Council member Aruna Roy has urged to the prime minister Manmohan Singh to immediately withdraw the petition which is scheduled to be heard by the Supreme Court on January 23.
The letter written by Ms Roy is as following:
New Delhi 110001 January 21, 2012
Dear Dr. Manmohan Singhji,
I am deeply distressed, dismayed, and shocked that the Ministry of Rural Development (as representing the Central government) has been instructed to file an appeal against the Karnataka High Court judgment, which ruled that no MGNREGA worker could be paid less than the Minimum Wage, and ordered therefore that the workers be paid the State Minimum Wages. This decision reflects the gross insensitivity of the Central government towards the rights of the country’s poor. The MGNREGA is one of the main legislations that guarantees those at the bottom of the economic pyramid, their basic entitlements. In fact, payment of Minimum Wages on NREGA works had created a synergy between the two Acts, and for the first time the most exploited workers in our country gained some bargaining capacity. The delinking of MGNREGA from Minimum Wages renders both the MGNREGA and the Minimum Wages Act weak and ineffective.
In January 2009 the Central Government issued a notification under section 6(1) of the MGNREGA delinking NREGA from Minimum Wages, and freezing wages at Rs 100 per day. An open statement was circulated in opposition to this step, signed by several very eminent jurists and lawyers such as Justice Venkatachaliah, Justice JS Verma, Justice Krishna Iyer, Senior Advocates Fali Nariman, Soli Sorabjee, Anil Diwan etc. I attach the letter written earlier to you and an open Statement signed by the jurists. However, the Government chose to ignore this statement as well as considered expert advice from both within and outside Government, and the concerned Ministries which warranted more serious consideration.
At that time the Government said that it was in litigation in the Karnataka and Andhra High Courts and that the decisions of the High Courts would be respected. The GOI has in fact chosen to ignore the interim orders of both the High Courts, and been in contempt of the interim order of the AP High Court for over two years. It is an irony that the poorest and most disadvantaged workers in this country are not provided the most basic protection that must be provided to every worker in the country.
Nonpayment of Minimum Wages is not only unconstitutional but amounts to “forced labour”. This has been upheld by the Supreme Court in the Judgment on Sanjit Roy v/s State of Rajasthan (1983). Today the Minimum Wage Act is the one of the only protective legislations for those in the lower rungs of employment or in less secure and unsecure jobs. The MGNREGA has played a crucial role in making the Minimum Wage Act more effective because of its direct linkage to the Minimum Wages Act. A de-linking of the MGNREGA wage rate from that of Minimum Wages seriously compromises the rights of MGNREGA workers, and undermines the Minimum Wages Act itself. In effect, this also allows for an MGNREGA worker to be paid less than another worker doing the same work.
When the GOI as an employer asserts that it is not obliged to pay Minimum Wages on Government works, it loses its moral authority to enforce the Minimum Wages Act, and gives a message to all exploitative industry, big landlords, and private sector employers that Minimum Wages can be violated with impunity. The MGNREGA has played a very important role in preventing blatant exploitation of workers, subhuman conditions of work, and has reduced distress migration – because the worker is aware that alternative employment exists, and is able to negotiate a wage above starvation level.
One small, but important example of significant change that can come about because of Minimum Wage employment available through NREGA, is the liberation of large numbers of Saheriya (a primitive tribal group) workers in District of Baran, Rajasthan, who have been working and living under conditions of bondage and extreme exploitation for several generations. One important reason for their liberation was that they could find stop-gap employment for a 100 days a year on NREGA work at minimum wages when no other employer was willing to give them alternative employment. However, de linking MGNREGA from Minimum Wages would create the opposite effect, as the Bonded Labour Act quite rightly defines the payment of less than the Minimum Wage as an important indication of bondage.
The human development indicators in India are worse than that of sub Saharan Africa. Just ten days ago, you yourself noted that despite “impressive growth in our GDP, the level of under-nutrition in the country is unacceptably high”[at least 42% of our children] [and that] “the problem of malnutrition is a matter of national shame”. For the government to assert its right to not pay the Minimum Wage to its poorest workers is not just unconstitutional, it also amounts to an abdication of its duty to uphold the rule of law. Finally, it makes statements about concern for family income and malnutrition seem like mere lip service.
I am aware that the Government is concerned about a State arbitrarily raising its Minimum wage, and the Centre having to pay the costs of this. Evidence over the last six years, shows that this has not really happened. In any case, there are many ways in which this issue can be resolved without undermining the worker’s right to Minimum Wages under the MGNREGA. The worst potential impact of this SLP will be the crippling threat posed to the Minimum Wages Act itself and its impact on the unorganized workforce which consists of 93% of our workers.
I appeal to you and your government to set this imbalance right by accepting Supreme Court Judgments of the past, the orders of the AP High Court, and the current judgment of the Karnataka High Court. We urge you to issue instructions to immediately withdraw the SLP. Claims of aspiring for “inclusive growth” by a Government that fights the payment of minimum wages will only ring hollow and false.