“Mutated Sumangali Scheme”: challenges in enforcement of labour laws in spinning mills of Tamil Nadu

ABSTRACT

During the 1990s, the Sumangali (Tamil for “happily married women”) Scheme was in practice at spinning mills in various districts of Tamil Nadu. Considering its highly exploitative characteristics, the Sumangali Scheme was generally viewed as “modern slavery”. Interventions by the government and non-governmental organizations have curbed these typical characteristics of the Sumangali Scheme. In this context, this article finds that the Sumangali Scheme has not been eradicated. Rather, it has been mutated into another form. Under this “Mutated Sumangali Scheme”, female labour rights violations still continue. This article analyses the reasons for these labour rights violations, including absence of collective bargaining, ineffective proactive enforcement by government agencies, inherent loopholes in substantive laws, and slack in interventions by government and non-governmental agencies. Finally, the article recommends appropriate measures to curb these violations and eradicate the Mutated Sumangali Scheme.

KEYWORDS:

• Sumangali
• Tamil Nadu
• India
• labour law
• women in India
• qualitative research

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

¹ Lothar Auchter, ‘The “Sumangali Scheme” and the need for an integrative ethic management overall the supply-chain’ (2015) 5 The Business & Management Review 269.

² “Textile Sector” (Government of Tamil Nadu, Department of Handlooms and Textiles) <http://www.tn.gov.in/hhtk/dht/dht-textile.htm> accessed 22 August 2021.

³ ibid.

⁴ Solidaridad and Fair Labor Association, Understanding the Characteristics of the Sumangali Scheme in Tamil Nadu Textile & Garment Industry and Supply Chain Linkages (2012) (Solidaridad and Fair Labor Association Report).

⁵ ibid. See also Centre for Research on Multinational Corporation and India Committee of the Netherlands, Captured by Cotton (2011); Indian Committee of the Netherlands, Fabric of Slavery (2016).

⁶ In general, ‘dowry’ means the property that a bride brings with her at the time of marriage. See Wanda Teays, ‘The Dowry Problem in India’ (1991) 7(2) Journal of Feminist Studies in Religion 29. The Dowry Prohibition Act 1961 defines ‘dowry’ as ‘any property or valuable security given or agreed to be given either directly or indirectly: (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of said parties … ’.

⁷ Solidaridad and Fair Labor Association Report (n 4).

⁸ See Harsh Mander, ‘Child Camp Coolie in Tamil Nadu’ (Live Mint, 12 January 2016) <https://www.livemint.com/Opinion/ZpH9hN76b27t74BBgFPc7K/Child-camp-coolies-in-Tamil-Nadu.html> accessed 20 August 2022. The Sumangali Scheme had served to be a camp-coolie system, where the workers were not allowed to move out of the spinning mill premises and were subjected to exploitation.

⁹ Solidaridad and Fair Labor Association Report (n 4).

¹⁰ However, till date, there exist no data indicating the specific age groups of the young girls involved in the Sumangali Scheme.

¹¹ Solidaridad and Fair Labor Association Report (n 4).

¹² Modern slavery does not have any legal definition in India. However, there are definitions from international documents. The term ‘modern slavery’ serves as an umbrella term to refer to exploitative practices such as human trafficking, forced labour, debt bondage etc. ‘Essentially, it refers to situations of exploitation that a person cannot refuse or leave because of threats, violence, coercion, deception, and/or abuse of power’. See ‘Modern slavery is on the rise’ (United Nations) <https://www.un.org/en/observances/slavery-abolition-day> accessed 25 November 2021. The definition of forced labour could be derived from ILO Forced Labour Convention 1930 (No 29) – “all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily’. The definition of forced labour also entails ‘slavery or slave-like practices and various forms of debt bondage … also called ‘Modern-Slavery’ to shed light on working and living conditions contrary to human dignity’. See ‘What is Forced Labour, Modern Slavery and Human Trafficking’ (International Labour Organization) <https://www.ilo.org/global/topics/forced-labour/definition/lang-en/index.htm> accessed 13 August 2022. Though labour rights violations are common, various reports by civil society organizations deemed the Sumangali Scheme as ‘modern slavery’ because of the severe human rights violations (such as bonded labour, forced labour, child labour and human trafficking) observed in practice. See also ‘Addressing the Modern Slavery in Tamil Nadu Textile Industry – Feasibility Study Report’ (Freedom Fund, 2014) <https://freedomfund.org/wp-content/uploads/Addressing-modern-slavery-in-Tamil-Nadu-Textile-Industry-26Feb15.pdf> accessed 11 August 2022; ‘Slavery on the High Street’ (Anti-Slavery International, 2012) <https://www.antislavery.org/wp-content/uploads/2017/01/slavery_on_the_high_street_june_2012_report.pdf> accessed 11 August 2022; ‘Evaluation of Sumangali’ (Kaarak, 2019) <https://www.laudesfoundation.org/02content/evaluations/2020/11/evaluation-of-sumangalireport-lr.pdf> accessed 11 August 2022.

¹³ The 17 districts are: Erode, Coimbatore, Dindigul, Madurai, Theni, Salem, Namakkal, Karur, Sivaganga, Ramanathapuram, Virudhunagar, Tirunelveli, Tuticorin, Dharmapuri, Krishnagiri, Trichy, and Vellore.

¹⁴ Solidaridad and Fair Labor Association Report (n 4).

¹⁵ ‘Annual Impact Report 2015’ (The Freedom Fund, 2015) <https://freedomfund.org/wp-content/uploads/2015-Freedom-Fund-Annual-Impact-Report.pdf> accessed 12 March 2023.

¹⁶ Rochin Chandra, ‘Sumangali Scheme: When Marriage Assistance Becomes Bonded Labour in Disguise’ (The News Minute, 3 November 2016) <https://www.thenewsminute.com/article/sumangali-scheme-when-marriage-assistance-becomes-bonded-labour-disguise-52320> accessed 10 August 2022. See also ‘Sumangali Scheme no Longer in Practice: Nilofer’ The Hindu (Chennai, 30 June 2018) <https://www.thehindu.com/news/national/tamil-nadu/sumangali-scheme-no-longer-in-practice-nilofer/article24295121.ece?homepage=true> accessed 10 August 2022.

¹⁷ The classic characteristics of the Sumangali Scheme (which existed in the late 1990s) were (1) compulsory camp-coolie system; (2) payment of lump-sum at the end of three to five years’ contract; and (3) employment of young girls below the age of 18 years.

¹⁸ Yamuna Menon, ‘Sumangali System: Is the Truth Ugly?’ (2019) 4(2) Cambridge Law Review 138.

¹⁹ Christa Wichterich, Gender and Violence in Historical and Contemporary Perspective Situating India (Routledge 2020) 203.

²⁰ M Karthik and Ram Kumar Mishra, ‘Social Marginalisation of Women Textile Workers – A Study on the Textile & Garment Clusters at Coimbatore, Tirupur, Ahmedabad & Surat’ (2018) 8(2) Journal of Governance & Public Policy 85.

²¹ Centre for Research on Multinational Corporations and India Committee of the Netherlands (n 5).

²² Solidaridad and Fair Labor Association Report (n 4).

²³ Labour and Employment Department, Government of Tamil Nadu, G.O.Ms.No.137, dated 22 June 2007.

²⁴ Since the existing labour laws trace their origin to the time of the British Raj, they have either lost their contemporary relevance or become ineffective. Further, the web of many labour legislations creates difficulty for workers while claiming benefits. Therefore, the Union Government of India has repealed existing labour legislations and codified 29 labour laws into 4 labour codes viz., the Code on Wages 2019, Occupational Safety, Health and Working Conditions Code 2020, Code on Social Security 2020, and Industrial Relations Code 2020.

²⁵ Press Trust of India, ‘4 labour codes likely to be implemented by FY23 as states ready draft rules’ Business Standard (New Delhi, 19 December 2021) <https://www.business-standard.com/article/economy-policy/4-labour-codes-likely-to-be-implemented-by-fy23-as-states-ready-draft-rules-121121900177_1.html> accessed 10 August 2022.

²⁶ Paul Wolfson, ‘A review of the consequences of the Indian minimum wage on Indian wages and employment’ (May 2019) ILO Asia-Pacific Working Paper Series <https://www.ilo.org/wcmsp5/groups/public/—asia/—ro-bangkok/—sro-new_delhi/documents/publication/wcms_717971.pdf> accessed 14 December 2023. See also A Srija, ‘Implementation of the Minimum Wages Act, 1948 – Case Study of India’ (2014) 14(7) Global Journal of the Human-Social Science 1, 2. In 1948, the Fair Wages Committee (Tripartite Committee) recommended a framework for fixing minimum wages. These recommendations guided the enactment of the Minimum Wages Act 1948, which is applicable to workers in the unorganized sector who lack collective bargaining and are likely to be exploited. While the Minimum Wages Act 1948 is silent about the criteria for the fixation of minimum wage, the Need-Based criteria for minimum wages are usually derived from the recommendations of the Committee on Fair Wages 1949, the Indian Labour Conference 1957 (15th Session) and Supreme Court verdicts. Workmen Represented by Secretary v Reptakos Brett & Co Ltd, AIR 1992 SC 504 [12].

²⁷ Wolfson (n 26).

²⁸ Minimum Wages Act 1948, s 3(1A). However, judicial interpretation suggests that the ‘appropriate government’ is not prevented from fixing the minimum rate of wages even if the number of employees in the scheduled employment is less than one thousand. See, for instance, Sahdeo Sahu v State of MP, (1990) II LLJ 402 (MP).

²⁹ Minimum Wages Act 1948, s 3(1)(b).

³⁰ The Code on Wages 2019 amalgamated/replaced four wage-related laws in India viz., Minimum Wages Act 1948, the Payment of Wages Act 1936, the Equal Remuneration Act 1976, and the Payment of Bonus Act 1965.

³¹ National Floor Level Wage is a minimum wage that mandates the state government to fix minimum wages only above National Floor. It was first introduced in 1996 by the Union Government based on the recommendation of the National Commission on Rural Labour 1991. In general, the National Floor Level Wage is a non-statutory measure towards ensuring upward revision of minimum wages in different states. ‘India National Floor Level Minimum Wage’ (Trading Economics) <https://tradingeconomics.com/india/minimum-wages> accessed 21 September 2021.

³² Code on Wages 2019, s 9.

³³ The word ‘workers’ has been used to denote the spinning mill workers in a generic sense. However, the words ‘employee’ and ‘apprentice’ are used to denote the classification of workers under the Minimum Wages Act 1948.

³⁴ Labour and Employment (J2) Department, G.O. (MS) No. 1, dated 3 January 2007. See Minimum Wages Act 1948, s 3.

³⁵ In other words, the spinning mill associations contended that the Sumangali girls are ‘apprentices’ who are not covered under the definition of ‘employee’ under the Minimum Wages Act 1948, s 2(i).

³⁶ Minimum Wages Act 1948, ss 2(i), 3(1)(a).

³⁷ Tamil Nadu Spinning Mills Association v State of Tamil Nadu, WP No 28,741 of 2008 (Madras High Court, 30 April 2009) <https://indiankanoon.org/doc/1102952/> accessed 1 January 2023.

³⁸ Labour and Employment (J1) Department, G. O. (2D) No. 61, dated 7 November 2008. See also Part II – Section 2 Notifications or Orders of interest to a section of the public Issued by the Secretariat Departments, Tamil Nadu Government Gazette 436–437 (16 May 2018) <http://www.stationeryprinting.tn.gov.in/gazette/2018/20_II_2.pdf> accessed 20 August 2020. See also Labour and Employment (J1) Department, G.O. (2D) No. 43, dated 19 April 2018.

³⁹ Code on Wages 2019, s 2(k), which defined ‘employee’ as ‘any person (other than an apprentice engaged under the Apprentices Act 1961 (52 of 1961))’.

⁴⁰ See Labour and Employment (J2) Department, G.O. (D)No. 437, dated 17 September 2020. The state governments are empowered to constitute a committee to hold enquiries and advise the government in the matter of fixation of the minimum wages under the Minimum Wages Act 1948, s 5(1)(a).

⁴¹ The international brands have urged the Government of Tamil Nadu to fix meaningful minimum wages for spinning mill workers in consonance with International Labour Organization standards. ‘Brands Urge Minimum Wage for Textile Workers in Tamil Nadu’ (American Apparel & Footwear Association) <https://www.aafaglobal.org/AAFA/AAFA_News/2021_Letters_and_Comments/Brands_Urge_Minimum_Wage_for_Textile_Workers_in_Tamil_Nadu.aspx> accessed 10 August 2021. See also Georges Corbineau, ‘Brands urge minimum wage for Tamil Nadu textile workers’ (Just Style, 24 February 2021) <https://www.just-style.com/news/brands-urge-minimum-wage-for-tamil-nadu-textile-workers/> accessed 10 August 2021. Further, the international brands acknowledged that the agreed wage levels will be reflected in the costs and will be accommodated in the value of production from the region. ‘Support from AGT brands for establishing a minimum wage for textile workers in Tamil Nadu’ (International Responsible Business Conduct, 14 June 2021) <https://www.imvoconvenanten.nl/en/garments-textile/news/minimumloon-textielarbeiders-tamil-nadu> accessed 10 August 2021.

⁴² The Industrial Employment (Standing Orders) Act 1946, s 1. This Act applies to establishments with more than 100 workers. Therefore, the Act is applicable to spinning mills. Due to the non-availability of data on the number of workers in each spinning mill, an average is arrived to 250 workers per spinning mill based on the report by the Institute of Developing Economics & Japan External Trade Organization. See ‘Young Female Workers in the Spinning Mill Industry in South India: Labour Practices and Problems’ (Institute of Developing Economics & Japan External Trade Organization, 2017) <https://www.ide.go.jp/English/Research/Project/2016/c29.html> accessed 10 August 2022.

⁴³ Preamble to the Industrial Employment (Standing Orders) Act 1946. See also Rohtak Hissar District Electricity Supply Co Ltd v State of Uttar Pradesh, AIR 1966 SC 1471.

⁴⁴ Shyam Sundar, ‘Industrial Relations Code and Standing Orders Act: A Deregulation that Spells Chaos and Hurts Workers’ (The Leaflet, 16 October 2020) <https://theleaflet.in/industrial-relations-code-and-standing-orders-act-a-deregulation-that-spells-chaos-and-hurts-workers/> accessed 13 August 2021.

⁴⁵ Industrial Employment (Standing Orders) Act 1946, ss 3, 4, 5 and 9. See also The Bagalkot Cement Co Ltd v RK Pathan, AIR 1963 SC 439 [5].

⁴⁶ Industrial Employment (Standing Orders) Act 1946, s 2(g). Refer to the Schedule in particular (‘Matters to be Provided in Standing Order under this Act’).

⁴⁷ Karnataka State Road Transport Corporation v SG Kotturappa, (2005) 3 SCC 409.

⁴⁸ The Industrial Relations Code 2020 amalgamates/replaces the Industrial Employment (Standing Orders) Act 1946, the Industrial Disputes Act 1947, and the Trade Unions Act 1926.

⁴⁹ The Industrial Relations Code 2020, s 28(1).

⁵⁰ The Industrial Employment (Standing Orders) Act 1946, s 1.

⁵¹ Jeet Singh Mann, ‘Labour Law Reforms’ (Centre for Transparency and Accountability in Governance, National Law University, Delhi, 2021) 234 <https://nludelhi.ac.in/download/Labour%20Law%20Reforms%20Book%20NLU%20Delhi%202021.pdf> accessed 21 December 2023.

⁵² Sundar (n 44).

⁵³ JK Industries Ltd v Chief Inspector of Factories and Boilers, (1996) 6 SCC 665 [14].

⁵⁴ Factories Act 1948, s 2(m). As per this provision, the term ‘factory’ means a premise with ten or more workers employed in the manufacturing process with the aid of power and twenty or more workers in case of the manufacturing process without the aid of power. Due to the non-availability of data on the number of workers in each spinning mill, an average is arrived to 250 workers per spinning mill based on the report by the Institute of Developing Economics & Japan External Trade Organization.

⁵⁵ Factories Act 1948, s 54.

⁵⁶ ibid s 51.

⁵⁷ ibid s 55.

⁵⁸ For instance, the Factories Act 1948, s 64(2) enables the classes of factories to exempt provisions concerning working hours enabling factories to cope with an exceptional pressure of work. Gujarat Mazdoor Sabha v State of Gujarat, (2020) 10 SCC 459 [36]. See also Factories Act 1948, s 65(3).

⁵⁹ Factories Act 1948, s 65(3). Further, according to this provision, ‘[t]he spread over, inclusive of intervals for rest, shall not exceed thirteen hours in any one day; the total number of hours of work in any week, including overtime, shall not exceed sixty … ’.

⁶⁰ ibid s 59.

⁶¹ ET Online, ‘Pay, leaves and work hours: How the new labour codes impact you’ (The Economic Times, 30 June 2022) <https://economictimes.indiatimes.com/news/economy/policy/pay-leaves-and-work-hours-how-the-new-labour-codes-impact-you/articleshow/92562758.cms?from=mdr> accessed 15 August 2022.

⁶² See Factories Act 1948, s 64(4): ‘ … the following limits of work inclusive of overtime:— (i) the total number of hours of work in any day shall not exceed ten; (ii) the spread over, inclusive of intervals for rest, shall not exceed twelve hours in any one day’.

⁶³ Gujarat Mazdoor Sabha (n 58) [36].

⁶⁴ Occupational Code, s 27, proviso I.

⁶⁵ Factories Act 1948, s 79(7).

⁶⁶ ibid s 52.

⁶⁷ ibid s 52(a) and (b) serves to be the exception for not granting weekly holiday on the first day of the week (hereinafter referred to as ‘the said day’). The exceptions are: (1) the workers have a whole day holiday on one of the 3 days immediately before or after the said day; ‘and’ (2) before the said day or substituted day, the manager for factory has to deliver a notice at the office of the inspection and display a notice to that effect in the factory.

⁶⁸ ibid.

⁶⁹ Tamil Nadu Shops and Establishments Act 1947, s 25(2).

⁷⁰ Factories Act 1948, s 80.

⁷¹ See Factories Act 1948, s 78, which states ‘ … in relation to matters … in … agreement or contract of service or matters which are provided for less favourably therein, the provisions of sections 79 to 82, so far as may be, shall apply’.

⁷² Payment of Bonus Act 1965, s 8.

⁷³ ibid s 10.

⁷⁴ ibid s 9. The workers may be disqualified from receiving bonuses if they have been dismissed from the service due to fraud, riotous behaviour, theft, misappropriation of any property of the establishment. An addition ground of disqualification, ‘conviction for sexual harassment’, has been incorporated in the Code on Wages 2019.

⁷⁵ Factories Act 1948, s 66(1)(b). This section stated that ‘No woman shall be required or allowed to work in any factory except between the hours of 6 A.M. and 7 P.M. … provided that the State Government may, by notification … vary the limits laid down in clause (b), but … no such variation shall authorize employment of any woman between the hours of 10 P.M. and 5 A.M’.

⁷⁶ Smt R Vasantha v Union of India, (2001) 2 LLJ 843. Factories Act, s 66(1)(b) was declared unconstitutional as it violated art 14 (equality before law), art 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), and art 16 (equality of opportunity in matters of public employment) of the Indian Constitution.

⁷⁷ See also TE Narasimhan and Aman Sethi, ’Women on night shift: A lesson from Tamil Nadu’ (Business Standard, 12 August 2014) <https://www.business-standard.com/article/current-affairs/women-on-night-shift-a-lesson-from-tamil-nadu-114081200027_1.html> accessed 18 August 2021.

⁷⁸ Vasantha (n 76) [105(n)].

⁷⁹ ibid [105(l)].

⁸⁰ Factories Act 1948, s 64(4)(ii).

⁸¹ See generally Trade Union Act 1926. The preamble of the Act makes the intent of the Act clear – ‘An Act to provide for the registration of Trade Unions and in certain respects to define the law relating to registered Trade Unions’.

⁸² Industrial Relations Code 2020, s 14.

⁸³ ibid s 3(r); Trade Union Act 1926, s 1.

⁸⁴ Constitution of India 1950, art 19(1)(c), which declares that ‘[a]ll citizens shall have right to form associations or unions’. See also All India Bank Employees’ Association v The National Industrial Tribunal (Bank Disputes), Bombay, (1962) 3 SCR 269 [28].

⁸⁵ Industrial Disputes Act 1947. This legislation intends to enable the investigation and settlement of industrial disputes, and for certain other purpose. Sections 3, 4, 5, 9-C of the Act mandate Works Committee, Grievance Redressal Machinery, Conciliation Officer and Boards of Conciliation (respectively) in every industrial establishment. For the purpose of this legislation, Section 2(j) of the Act defines ‘industry’ as ‘any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen’. Further, as per Section 2(ka) of the Act, ‘industrial establishment’ means ‘an establishment or undertaking in which any industry is carried on … ’ Thereby, spinning mills fall under the ambit of the Industrial Disputes Act 1947 and are subject to its requirements of setting up grievance redressal mechanisms.

⁸⁶ ‘NHRC issues notice to the Government of Tamil Nadu over reported denial of basic amenities to garment industry workers in the state (21.02.2019)’ (National Human Rights Commission, 21 February 2019) <https://nhrc.nic.in/media/press-release/nhrc-issues-notice-government-tamil-nadu-over-reported-denial-basic-amenities> accessed 10 August 2021.

⁸⁷ The National Human Rights Commission is a national human rights watch-dog that was established in 1993 under the Protection of Human Rights Act 1993. ‘About the Organisation’ (National Human Rights Commission) <https://nhrc.nic.in/about-us/about-the-Organisation> accessed 10 August 2021.

⁸⁸ Reactive enforcement is a system that triggers an external enforcement agency by members (workers) through a complaint. The external enforcement agency usually includes an ‘Inspectorate, the police, the court, an ombudsman or someone who can coerce through sanction to the person charged with a duty to perform his or her duty’. See Shikha Soni and Sibnath Deb, ‘From subjection to liberation’ in Sibnath Deb, G Subhalakshmi and Kaustuv Chakraborti (eds), Upholding Justice – Social, Psychological and Legal Perspectives (Routledge 2021) 204, 208.

⁸⁹ Kovai Erode Mavatta v Government of Tamil Nadu, Writ Petition No 21868 of 2007 (Madras High Court, 2015); The District Anna Pachalai Thozhilalar Sangam v State of Tamil Nadu, Writ Petition No 27362 of 2007 (Madras High Court, 2009). Unfortunately, orders of both cases are not accessible online, and for that reason the authors are unable to provide the dates of the relevant orders.

⁹⁰ (a) There shall be a District Monitoring Committee comprising of the District Collector, Deputy Chief Inspector of Factories, Deputy Labour Commissioner, one representative of the District Legal Services Authority and one woman NGO, nominated by the District Legal Services Authority. (b) The District Monitoring Committee should carry out surprise inspections of the Textile Mills in their respective Districts, as well as in the places where the female workers were accommodated and collect information about the wages paid to them and their working conditions, in order to find out whether they are merely Learners/Apprentices or engaged in regular employment. (c) Each of those Committees shall submit its report to the Registrar-General within 3 months, along with their recommendations for regularization of their services and for payment of regular wages.

⁹¹ See also Kamala Sankaran, ‘The ‘enforcement crisis’ and social rights in India’ in Sibnath Deb, G Subhalakshmi and Kaustuv Chakraborti (eds), Upholding Justice – Social, Psychological and Legal Perspectives (Routledge 2021) 208. In Bridget M Hutter’s words, ‘[p]roactive enforcement is essentially law enforcement through agency initiative, so it involves officials going and seeking and seeking out offences. This is in contrast to reactive enforcement, where the agency response is prompted by an outside person or event, typically through lodging a complaint or reporting an accident’. See Bridget M Hutter, ‘An Inspector Calls – The Importance of Proactive Enforcement in the Regulatory Context’ (1986) 26(2) The British Journal of Criminology 114.

⁹² The continuing labour rights violations in the spinning mills could be evidenced from the notice issued by the National Human Rights Commission in 2019. See National Human Rights Commission (n 86).

⁹³ ‘About us’ (Tamil Nadu State Legal Service Authority) <http://www.tnlegalservices.tn.gov.in/aboutus.htm> accessed 11 September 2021.