The Right to Health for Individuals Engaged in Industries with Hazardous Work Environments

By Sahiba Vyas, National Law University, Odisha, and Shubhi Jadoun, Lloyd Law College

Abstract

The Occupational health of workers working in hazardous industries has been overlooked for ages in India. There are various Conventions having provisions for the removal of health vulnerabilities caused due to hazardous industries and work environments. Apart from International Conventions, there are some national laws which have provisions regarding the same as well. Through this blog, the authors will attempt to through some light upon how working in a hazardous industry is violating the Right to Life of such workers, as enshrined under the Indian Constitution. Further, the article also tries to highlight the various occupational safety laws, in lieu of Right to Life, that are available in India; how all these laws have been waived off and how the situation can now be solved.

Introduction

The meaning of Occupational Health as ascertained by the World Health Organisation is to maintain and promote the physical, mental and social well-being of workers in all occupations.[1] Further, it also lays a major emphasis on the prevention of hazards at preliminary level.[2] As per the International Covenant on Economic, Social and Cultural Rights (UN, 1976), –

 “Recognize the right of everyone to work; the right of everyone to enjoyment of just and favourable conditions of work which ensure in particular, safe and healthy working conditions; the right to the highest attainable standards of physical and mental health, in particular, the improvement of all aspects of environmental and industrial hygiene; the prevention, treatment and control of epidemic, endemic, occupational and other diseases; the creation of conditions which would assure to all medical service and medical attention in the event of sickness.”

Further the International Labour Organisation’s Constitution, 1919, provides that –

“Whereas universal and lasting peace can be established only if it is based upon social justice; And whereas conditions of labour exist involving such injustice; hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required; as, for example,… the protection of the worker against sickness, disease and injury arising out of his employment.”

Thus it can be said that occupational health is not merely a right but also the very basic human right which has been guaranteed under various international conventions.

In an era where the development of any country depends upon the economy and the employment generated is increasingly by hazardous industries, the danger it causes to human life and environment cannot be ignored. The presence of all the international conventions and country specific laws are unable to provide protection to workers employed in these hazardous industries as still about 2.3 million people die each year in the world due to hazardous work conditions, workplace illness and accidents across the globe.[3]

Article 21 And Occupational Health

The Indian Constitution enshrines provisions for the rights of citizens in detail. The Directive Principle of State Policies ensure the safety and health of workers, provides for just and humane conditions at workplaces and provides for Maternity benefits. It also directs the government to make such provisions which are essential for providing suitable working conditions to workers.

In the landmark judgement of Consumer Education Research Center vs. Union Of India,[4] it was understood that the Right to Health is intrinsic to the Right to Life as guaranteed in the Indian Constitution. It was held in this case that “right to health, medical aid to protect the health and vigor to a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person”. It propounded the fact that Article 21 does not connote mere animal existence but has a much wider meaning which includes the right to livelihood, better standard of living, and hygienic conditions in work places too. In this case, the special place for workers in the socialist pattern was exemplified and it was said that “They are not mere vendors of toil, they are not a marketable commodity to be purchased by the owners of capital. They are producers of wealth as much as capital and very much more. They supply labour without which capital would be impotent and they are, at the least, equal partners with capital in the enterprise. Our constitution has shown profound concern for the workers and given them a pride of place in the new socioeconomic order envisaged in the Preamble and the Directive Principles of State Policy”.

Further in another case of Bandhua Mukti Morcha v. Union of India and others (1983),[5] the Court directed the government to ensure the protection of health of workers in industries and to look towards whether just and humane conditions are being provided to the workers or not, keeping in view the provisions of Article 21.

In light of some similar judgements by the Apex Court, there are over 100 state and 40 Central laws being legislated, that regulate various aspects of labour conditions including the working conditions inflicted upon the workers. The government also came up with the National Policy on Safety, Health and Environment at Work Places in 2009 with an objective of building a safe and secure health culture at the workplace.[6]

Even after so many legislations, according to the study conducted by IIT Delhi, around 48,000 people die at work in India every year.[7] Further there has been increase in deaths or severe illness due cardiovascular diseases, chronic obstructive pulmonary disease and cancer due to exposure to these harmful chemical while working in hazardous industries.[8]

In the landmark judgement of Olga Tellis v. Bombay Municipal Corporation,[9] it was held that, “There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and substance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose”. This was further reiterated in the case of Nar Singh Pal V. Union of India,[10] wherein it was held that “fundamental rights cannot be bartered away and there can be no estoppel against the same”. Thus, even if these workers are bound by the contract of employment in hazardous environment, the threat that these industries are causing to the lives of all these workers is waiving off their fundamental Right to Life which is against the sanctity of the Indian Constitution.

The vulnerability caused by all such activities is increasing due the lack of government regulation and implementation of the various occupational legislations which have been formulated keeping in view the health hazards that such industries have inflicted. These hazards are not just violating the central labour legislations but are also violating pivotal rights that the Constitution enshrines.

Legislations Regulating Occupational Health

The Factories Act, 1948

Chapter 3 of this act deals specifically with occupational health. It directs that all factories should be kept clean and safe from any kind of nuisance, be it any kind of discharge from pits and drains or any other such nuisance.[11] Cleaning should be done on a daily basis and efficiently so as to make the factory a safe place to work in. It also suggests that viable plans will be made in each production line for the treatment of squanders and wastes.[12] There ought to be sufficient ventilation and such a temperature as will forestall injury to their wellbeing.[13] In each manufacturing unit, there is residue or rage or other debasement of such a nature and such amounts are probably going to be harmful to the labourers. Thus, any residue in significant amounts, will invite point powerful measures to be taken to forestall its inward breath and amassing in any workroom.[14] Also, no unit of the plant will be packed to a degree harmful to the wellbeing of the people working there. Congestion goes about as a specialist to transmittable sicknesses and furthermore makes ready for a ton of mishaps and after the pandemic, social distancing is perhaps the new ordinary.[15] The Act likewise indicates the arrangements for management of clean drinking water,[16] and adequate washroom convenience.[17] Individuals engaged with these industrial facilities are predominantly in contact with or work close to destructive residue, particles, synthetic emanations and what not and accordingly this must additionally accommodate security estimates like compelling screens or goggles for protection of eyes,[18] and no entry without wellbeing measures in restricted sections like any chamber, vat, tank, pit, line, vent or other bound spaces in any production line in which any gas, fume or residue exists.[19] One of the main highlights of this act is Section 91A which was inserted in 1976, which states,

……….at any time during the normal working hours of a factory, or at any other time as is found by him to be necessary, after giving notice in writing to the occupier or manager of the factory or any other person who for the time being purports to be in charge of the factory, undertake safety and occupational health surveys, and such occupier or manager or other person shall afford all facilities for such survey, including facilities for the examination and testing of plant and machinery and collection of samples and other data relevant to the survey”.[20]

The Mines Act 1952

The major commitments under the Mines Act and the Mines Rules, 1955, incorporate the development of security councils in each mine where more than 100 people are working, giving a notice of mishaps and the arrangement of workers’ assessors by the chief manager. [21] Chapter 5 of the Mines Act, 1952, expressly contains provisions for occupational health. Clinical help ought to be given and promptly kept open during all functioning hours to each labourer and a particular number of emergency treatment boxes ought to likewise be accessible.[22] Each emergency treatment box or cabinet will be kept in the charge of a responsible individual who has the knowledge of first-aid or medical aid therapy and such individual will consistently be accessible during the functioning hours of the mine. There ought to be powerful management of water and coal.[23] It additionally accommodates a viable administration of appropriate ventilation.[24]Like Section 91A of the Factories Act, Section 9A of this act also provides for conducting occupational health surveys, as it states,

“…..any time during the normal working hours of the mine or at any time by day or night as may be necessary, undertake a safety and occupational health survey in a mine after giving notice in writing to the manager of the mine; and the owner, agent or manager of the mine shall afford all necessary facilities (including facilities for the examination and testing of plant and machinery, for the collection of samples and other data pertaining to the survey and for the transport and examination of any person employed in the mine chosen for the survey) to such Inspector or officer”.[25]

The Building & Other Construction Workers (Regulations Of Employment And Conditions Of Service) Act, 1996

This act targets controlling the work and status of administrations of building and other development labourers and accommodating their security, wellbeing and government assistance measures. Chapter VI and VII deal with the safety and preventive health measures of the workmen. Like the other two acts, this act also requires industry premises to have water on board where building or other development work is in progress; same with adequate lavatory and urinal convenience; transitory living convenience to all workers; and in case there are more than fifty female labourers, there ought to be crèches rooms with satisfactory clean convenience and legitimate ventilation. It also provides for safety measures to be taken to forestall the inward breath of residue, exhaust, gases or fumes during any granulating, cleaning, splashing or control of any material and  steps are to be taken to get and keep up with sufficient ventilation of each working place or restricted space.[26]

Apart from these acts, there are various other acts and International Conventions that deals with the occupational health and safety of workers directly or indirectly, viz. – Dock Workers (Safety, Health & Welfare) Act, 1986; The Dangerous Machines (Regulation) Act, 1983; The Inflammable Substances Act, 1952; Occupational Health Services Convention, 1985 (C No. 161); and, the Occupational Safety and Health (Dock Work) Convention, 1979 (C No. 152).

Conclusion

The entire goal of Occupational Safety and Health is to forestall illnesses, wounds, and deaths that are caused due to hazardous working conditions. Nobody ought to need to suffer a task related injury or infection due to their employment. It’s no mystery that all ventures have security risks or the like, the main part of a decent Occupational Health and Safety strategy is distinguishing these dangers and guaranteeing that representatives have the preparation, wellbeing gear, and different assets expected to work safely. A good OHS (Occupational Health and Safety) strategy helps in providing safe work spaces for every representative, and keeps up with satisfactory offices and essential conveniences by ensuring safe use, capacity of hardware, constructions and substances, and, monitoring the wellbeing of labourers and conditions at the working environment through surveys. This, in return, adds more efficiency to the labourer’s work. Even after constitutional provisions and a number of apex court precedents, OHS is by all accounts a difficult issue because of the absence of proper execution/implementation of the different occupational enactments which have been figured keeping in mind wellbeing risks such ventures have delivered over the time.

Disclaimer – All views and opinions expressed in this interview are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.


[1] Occupational Health, World Health Organisation (Jul. 24, 2021, 10:00 AM), https://www.who.int/health-topics/occupational-health.

[2] Rajat Kumar Saha, Occupational Health in India, Annals of global health (Jul. 24, 2021, 12 PM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6748231/#:~:text=Occupational%20health%20is%20defined%20as,hazards%20at%20a%20primary%20level.

[3] Health and safety at work is a fundamental right, International Trade Union Confederation (Jul. 23, 2021, 10:00 AM), https://www.ituc-csi.org/health-and-safety-at-work.

[4] Consumer Education Research Center v. Union Of India1995 S.C.C. (3) (India).

[5] Bandhua Mukti Morcha v. Union of India andothersAIR 1984 SC 802.

[6] National Policy on Safety, Health and Environment at Workplace, Ministry of Labour and Employment, Government of India (2009) (Jul. 23, 2021, 11:00 AM),  https://www.ilo.org/asia/WCMS_182422/lang–en/index.htm.

[7] Dilip A Patel and Kumar Neeraj Jha, An Estimate of Fatal Accidents in Indian Construction, Research Gate (Jul. 23, 2021 12:00 PM), https://www.researchgate.net/publication/308155592_AN_ESTIMATE_OF_FATAL_ACCIDENTS_IN_INDIAN_CONSTRUCTION.

[8] Kiran Pandey, Deaths by exposure to hazardous chemicals increased 29% between 2016 and 2019: WHO, Down to Earth (Jul. 23, 2021, 10:00AM), https://www.downtoearth.org.in/news/pollution/deaths-by-exposure-to-hazardous-chemicals-increased-29-between-2016-and-2019-who-77854.

[9] Olga Tellis v. Bombay Municipal Corporation 1985 SCC (3) 545.

[10] Nar Singh Pal v. Union of India (2000) 3 SCC 588.

[11] The Factories Act, 1948 § 11.

[12] Id. § 12.

[13] Id. § 13 (a) (b).

[14] Id. § Sec 14.

[15] Id. § 16.

[16] Id. § 18.

[17] Id. § 19.

[18] Id. § 35.

[19] Id. § 36.

[20] Id. § 91A.

[21] Unit 6, Occupational Health and Legislation in India, Occupational health and Safety :Legal and Operational Guide, PRIA International academy, https://pria-academy.org/pdf/OHS/unit6/OHS_Unit-6_Course%20Content_OHS%20Legislation%20in%20India.pdf.

[22] The Mines Act, 1952 § 21.

[23] Id. § 19

[24] Id. § 20.

[25] Id. § 9A.

[26] National Occupational Safety and Health profile, Directorate General Factory Advice Service and Labour Institutes and International Labour Organisation, https://dgfasli.gov.in/sites/default/files/service_file/Nat-OSH-India-Draft%281%29.pdf.

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