Labour Law Series - Introductory Note

- Sankari B

The COVID-19 pandemic has placed labour rights in a dynamic, yet precarious position. There has been a radical transformation in the way we conceptualise work, labour rights and regulation. At the cusp of such a transformation, it becomes pertinent to re-examine the existing scholarship on labour law and regulation and identify the gaps in the same. It is well established that there is a dearth of literature on labour law in India, given a lack of a reputable specialist labour law journal in India.[1]

In this context, the National Law School of India Review Online decided to publish contemporarily relevant pieces as a part of its ‘Labour Law Series’ to fill the present lacuna in the existing academic discourse on labour law. It situates the issue of labour rights in various realms of law, including technology and data privacy law, family law and international trade law. Such an interdisciplinary approach provides unique and insightful perspectives and demonstrates how labour law does not operate in a vacuum and often in tandem with other spheres of law.

The first two contributions capture the nascent yet emerging link between technology, data privacy and labour rights. In her piece, Shivangi Mishra examines the need for upholding the right to privacy of employees at workplaces and argues for recalibrating labour standards in light of a technologically driven workplace. Firstly, she critiques the ‘neoliberal obsession’ with productivity, which forms the foundation of workplace surveillance. She then analyses the multidimensional harms caused due to such surveillance, which includes a complete deprivation of privacy, autonomy, and dignity. Further, she identifies the lacuna in the Indian data privacy framework by looking into the jurisprudence and legislative developments in foreign jurisdictions, particularly the General Data Protection Regulation (‘GDPR’). Finally, she calls for an urgent need to consider the power imbalances and information asymmetry existing between an employer and employee to provide privacy and dignity to a worker.

While Shivangi offers a succinct and comprehensive understanding of the right to privacy of employees, Ankit Kapoor and Karthik Rai specifically focus on the privacy invasion and algorithmic control of workers in the gig economy. Like the previous piece, it dissects how power imbalances and information asymmetry exacerbate the violation of privacy, autonomy, and dignity of a gig economy worker. Firstly, the authors elaborate on the nature of privacy harms caused due to data collection and algorithmic processing by platform companies using Koops’ typology of privacy. They further establish the link between labour and privacy law by understanding the common core values they seek to uphold. Secondly, they dissect the labour and privacy law framework in India and demonstrate the lack of safeguards against privacy violations and the perpetuation of algorithmic unfairness in the gig economy. Further, they rely on international jurisprudence and carve out the core principles, including collectivisation that facilitates protecting the dignity of gig economy workers against workplace surveillance. Finally, the authors set out to propose a normative legislative framework to reverse the power relations, which are currently skewed in the favour of platform companies.

The link between family law and labour law has been explored in the third contribution written by Jwalika Balaji. She puts forth a moral, jurisprudential, and legal argument that urges the Indian state to provide paternity leave. She offers a feminist critique of the predominant models of work since it entrenches the gendered division of labour. This critique is buttressed by examining some of India’s laws and policies that place the complete burden of childcare on women. Then she proceeds to propose Nancy Fraser’s Universal Caregiver Model that calls for de-gendering labour. Further, she engages with the idea of masculinity and its interaction with the complexities of caregiving. She employs the concept of ‘ethics of care’ to construct an ontological basis for the Universal Caregiver Model. It helps in bolstering the argument that men are not mere providers and protectors but can actively participate in caregiving as well. The final section of the piece dissects principles underlying the jurisprudence surrounding maternity leave and uses the same to argue that paternity leave should be rooted in childcare and gender equality.

Finally, the linkages between international trade law and labour law are deconstructed in the piece written by Apoorva Nangia. Like in the previous piece, the author employs a postcolonial feminist lens to make the argument for trade-labour linkages to ensure an equitable distribution of benefits derived from globalisation. Firstly, she evaluates the existing arguments made in favour and against trade-labour linkages. Through this, she demonstrates how the Global North and South are to be held responsible for systematically entrenching imperialist and exploitative structures that devalue the work of marginalised women. Secondly, she situates the linkages in the present conceptualisations of labour, which are deeply gendered and colonial. One major issue located was the involvement of the International Labour Organisation (‘ILO’) in furthering a Euro-centric and universalist discourse on labour rights, without considering the diverse historical and cultural contexts of women labourers in the Global South. Thus, there is a need to decolonise labour law and the institutions upholding the same for trade-labour linkages to meet its exalted objectives.

While all the contributions have provided a diverse set of perspectives, the commonality observed lies in the compelling challenge against existing ways of conceptualising labour rights, which are deeply neoliberal. They also oppose the present tyrannical power differentials; be it between a worker and an employer, a man and a woman and the Global North and the Global South. They deeply analyse these power dynamics and call for creating a space of dignity for the oppressed by improving labour standards.

The Editorial Board is grateful to the authors for their contributions towards valuable scholarship on labour law and to our guest editor, Dr. Saurabh Bhattacharjee for his tremendous efforts and patience in reviewing the pieces. I hope that this Labour Law Series provides a springboard for further discourse on how we conceptualise labour rights in a constantly evolving work environment.

[1] Richard Mitchell, Petra Mahy and Peter Gahan, 'The Evolution of Labour Law in India: An Overview and Commentary on Regulatory Objectives and Development' (2014) 1 (2) Asian Journal of Law and Society 414. Post 2014, Centre for Labour Laws and Livelihood, NUJS has launched a blog specialising in labour law.