Shielding the vulnerable

Tech-aided oral contracts can go a long way in protecting ill-educated unorganised workers from exploitation

Shielding the vulnerable

The unorganised workers in India come from vulnerable social groups that lack education and economic resources. Further lack of legal protection subjects them to marginalisation, allowing them to be a target for exploitation by their employers. One way to protect unorganised workers is through creating tech-aided oral contracts that constitute sufficient evidence of the contractual workers they engage in. A viable policy design with an efficient enforcement mechanism is pertinent to achieve the safety of unorganised workers.

There is currently an approximate 28 crore (and growing) large workforce who are registered in India as unorganised workers. The definition of ‘unorganised workers’ is inclusive with an ever-expanding scope to capture all types of workers who do myriad things to earn wages and are not institutionalised. As their work is primarily non-institutionalised and transient, Indian laws and legal jurisprudence have found it difficult to provide efficient legal protection to them against exploitation. Even the new labour codes have struggled in expanding legal protection to unorganised workers, and have been only partially able to protect them by extending many of the legal rights to platform workers and gig workers.

However, the majority of unorganised workers in the present age and time are not legally protected under the new labour codes. This has been a cause of worry, as the demography of these workers comprises vulnerable social groups that make them susceptible to exploitation. Additionally, approximately three per cent or more of this workforce works with no written employment contract.

Many times, during verbal agreements, the employers understate or misrepresent information about the nature and hours of work as well as about wages and working conditions to attract the workers. Owing to the verbal nature of the agreement, the lack of evidence of representation, under which the verbal agreement is concluded, acts as an obstacle to the legal enforceability of such verbal agreements or for them to be interpreted as valid contracts. The outcomes of such situations, in general, are unfavourable long-drawn litigations resulting in an employer with deeper pockets and better economic resources coming out scot-free. However, we believe that the present agreements can be digitised by recording the verbal agreements while being concluded through smartphones. We call it an Audio-Visual (AV) contract.

The reason for such a proposition is postulated on a two-fold analysis. Firstly, the increasing mobile and Internet penetration, resulting from low costs, has allowed the poorest of the poor to avail of the facility of a smartphone. And secondly, oral contracts under the Indian Contract Act, 1872, are valid forms of contract. The only difficulty in their enforcement primarily stems from a lack of evidence that such contracts exist and have been mutually reached by both parties.

It must be noted that under contractual law, an enforceable agreement comprises four components i.e., free consent, the competence of parties, lawful consideration & lawful object, and expressly not declared void. An oral agreement satisfying the above-mentioned criteria will be legally enforceable, theoretically. However, in the practical application of the law, the Indian courts have held that oral agreements require clear and satisfactory evidence of formation and content. The burden of proof to prove that there exists a contract also lies on the party. Thus, an AV contract could serve as compelling proof of the existence of an oral agreement, providing a better possibility of its legal enforcement.

Successful implementation of this contractual framework from a policy perspective requires two things. Firstly, awareness. The masses need to be made aware of the benefits of AV contracts and how they will allow the prevention of any kind of exploitation of workers. Second, there needs to be a provision of a standard template under which such verbal agreements will be instituted. The existence of simplified instructions, which can be verbally communicated to individuals who lack higher education, can help easily record legally valid AV contracts.

Another facet that can further concretise the given policy design, and needs to be dwelled upon, is the viability of the electronic evidence and its need to be tamper-proof. Therefore, keeping a duplicate of the same in a server that can either be government-sponsored or be provided by a tech-aided platform with reasonable securities, can be considered a valid solution. This can ensure that in case of an allegation of data tampering in the original device, a record is still maintained in the servers of the proposed infrastructure. Thus, with the creation of an external database/platform, where such contracts can be stored, the content of verbal agreements will be ensured to have a digital presence resulting in little to no scope of falsifying or cheating the worker out of their promised benefits. The possibility of the creation of such a contract is very easy and can be undertaken by the workers themselves through their smartphones.

One of the best alternatives can be the storage of such information by the e-shram portal. The portal, through such an agreement, will be capable of bestowing direct benefit transfer to unorganised workers and catalysing their registration to the portal. However, such infrastructure requisites, data portability, and relevant data protection practices need to be kept in check.

Furthermore, the government will need to focus on walk-in enforcement of such contracts when furnished through the original device. Due to the digital nature of the contract, pecuniary jurisdiction could be considered for resolving disputes, and the parties can approach either the small-causes court or district courts for a breach of contract. However, long-drawn litigation may not be favourable for many migrant workers. Thus, Lok Adalats or alternate dispute redressal forums established by the government under labour laws can prove to be instrumental in reaching a compromise or settlement between the parties, quickly and reasonably.

RK Mitra is a former civil servant and is currently with; and Shubham Tiwary is a Law Professional who was part of the research team of C-dep. Views expressed are personal

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