Interpreting the law
Justice cannot always be delivered by the literal reading of the law
Examining our approach to delivering justice I mention in my book, 'Ethical Dilemmas of a Civil Servant' that when the British left this country, they took justice with them and left behind laws, in-laws and outlaws. This is based on my experience of 38 years in civil service where I came to witness that we are so obsessed with rules that we forget the spirit and the purpose behind such rules. No matter how well the practices or objectives and processes are codified, there would always be scope for interpretation. The 'spirit' part comes when we interpret the rules. Whether we should interpret the rules for the benefit of the poor is the issue. The advocacy is not for bending the rules but to interpret them in a manner that the purpose of formulating that rule gets served. On more than one occasion I found rules being interpreted (sometimes flouted) or even made to favour the rich. On a few occasions, civil servants paid a price for it but I have yet to come across an occasion when anyone has been hauled up for interpreting a law/rule in favour of the poor. Yet, we are apprehensive about indulging in it.
The cess fund collected under the 'Building and Other Construction Workers' Act' was burgeoning. In fact, it had exceeded the mark of Rs 7,000 crore! But its utilisation was very poor on account of the inability to identify recipient workers and also because of the migratory nature of such workers. Hence, the fund was largely unutilised. There was pressure from every quarter to increase its utilisation but not many had a clue on how to go about it. Still, efforts were underway to work out schemes for such unorganised workers as could be covered under the Act. States like Kerala and Tamil Nadu had taken the lead in doing so and a number of buildings and other construction workers were receiving benefits.
Visits to far-reaching corners of various states revealed that there were a large number of workers labouring hard in brick kilns who were not getting any benefit under the Act because they were not deemed to be building or other construction workers. The exploitation of these workers in these kilns was rampant and a known fact. There was also the incidence of the inhuman practice of bondage amidst brick kiln workers.
Strictly speaking, these workers weren't directly engaged in construction work but what they produced, in this case, bricks were an oft-used material in construction activities. The legislation did not specifically ban their exclusion but they were not included in the list mentioned in the legislation. The issue now was whether they could be considered as 'construction workers' in the 'other' category.
When the issue was debated in the Directorate General Labour Welfare (DGLW) where I was posted as the Director-General, there were those who believed that these workers cannot be treated as construction workers as they were not directly contributing to the construction of buildings. They further argued that if these workers were made eligible for benefits from the cess, then those working in the steel industry could stake a similar claim as the steel items produced by them were also being used in construction. These were the days when officers went by a strict interpretation of rules lest allegations are levelled against them (Ironically, it is true of a large number of officers even now).
Extremely concerned about the plight of brick kiln workers, I asked the office to move a note for consideration. The officers were not pushed to take a particular view. When the file came to me after going through various stages of the bureaucratic hierarchy, I found that some of the officers had taken a conservative view quoting the legislation. They had not looked at the grey area of the legislation that could possibly have been interpreted to help the brick kiln workers.
However, I was very clear in my mind. For me, the law was never an end in itself. Justice was. I was obviously against the express violation of law but if it could be interpreted to protect or promote the interests of the poor, it had to be interpreted that way. In this instance too, I decided to interpret the law in favour of this vulnerable lot. The explanation that I gave while over-ruling those who had written against it was based on logic rather than emotions.
In my view, earthen bricks were an intrinsic part of construction work. Hence, those engaged in making such bricks could not but be deemed as construction workers. After all, the quality of a brick and most of the value added to it was a direct result of the efforts put in by these labourers. Wherein, in the case of steel, the quality of the end product, as well as any value addition to it, was at best marginally dependent on the workforce.
My view was subsequently accepted by all and the brick kiln workers started benefitting under the legislation. To begin with, it was considered a risk but it was a risk well worth taking in the interest of the poorest of the poor of the country. Having said that some may still question whether it was justified to extend the benefits to a segment of workers that was not deemed to be covered under the express provisions of the law.
The article is drawn from an extract from the writer's book, 'Ethical Dilemmas of a Civil Servant'. Views expressed are personal