The interface between authoritarian innovations and labour: Implications for the Indian workforce

Introduction

A wide variety of political regimes around the world have recently installed authoritarian governments (Boffo et al., 2019; Heller, 2021; Tomini et al., 2022). Amidst this authoritarian turn in global politics, democratic institutions seem threatened (Arsel et al., 2021). The space for dissent is slowly narrowing as incumbent governments have been restricting political and civil rights, eroding independent institutions, manipulating elections and limiting political pluralism to expand executive power (Tomini et al., 2022).

However, these predictable strategies of repression are just one way of extensively and consistently minimising political threats (Ford et al., 2021). In fact, the exclusive focus on coercive and repressive modes of authoritarianism fail to recognise the broad repertoire of authoritarian practices emerging from neoliberal restructuring around the globe (Bozkurt-Güngen, 2018). Sastramidjaja (2024), for instance, argues that, in the neoliberal context, the sophistication of the state's capacity and scale for ‘authoritarian innovation’ to neutralise opponents in the cybersphere and control the narrative of government policy, is unprecedented. Thus, authoritarianism with liberal economic features has emerged to accommodate and attract capital and enhance the competitiveness of producers in the global economy (Arnold and Pickles, 2011), with some arguing for their possible amalgam termed ‘authoritarian neoliberalism’ (Biebricher, 2020). Authoritarian neoliberalism focuses on economic growth, insulates policies and institutions from dissent, diminishes the collective power of labour by fragmenting the working class, individualises labour laws and weakens collective bargaining processes and institutions, with considerable cost for the living and working conditions of workers. There is a curtailment of labour rights and a reduction in social rights (Bozkurt-Güngen, 2018; Clua-Losada and Ribera-Almandoz, 2017). The global wave towards autocratisation has encouraged the further development, diffusion and deployment of innovative techniques among those aspiring to emulate autocratic governments (Morgenbesser, 2020). Given this, we focus on authoritarian innovations (Curato and Fossati, 2020) to understand how the decline in democratic governance practices impacts industrial relations. The focus on authoritarian innovations shifts our attention from the predictable strategies used by authoritarian regimes to the less obvious practices of control at the meso-level (Ford et al., 2021). This meso-level focus on authoritarian innovations is well-suited to identify anti-democratic uses of seemingly democratic practices (Pepinsky, 2020).

In the context of India, considerable evidence supports the growing consensus that the Bharatiya Janata Party (BJP) government under Prime Minister Narendra Modi is experiencing an increase in authoritarianism (Bajpai and Kureshi, 2022; Nielsen and Nilsen, 2021). The BJP government has decreed major policy changes without democratic deliberation and consultation (Basu, 2021). A democracy once celebrated for its strong and autonomous institutions, vibrant civil society and extensive civil rights and liberties, has now, under the BJP government, severely curtailed the peaceful expression of dissent. In fact, a landslide victory in the 2019 general election has given the government more confidence and legitimacy to dramatically step-up illiberal policies (Ding and Slater, 2021). We therefore ask: how have authoritarian innovations impacted labour governance and opportunities for genuine democratic participation under the present government? And what has been the impact of these changes on workers?

In this paper, the observations and arguments put forward are derived from in-depth interviews with 20 trade union leaders (which include union leaders affiliated with the BJP [the party currently in power]) and 1 expert (all of whom are also referred to as ‘participant/s’, ‘interviewee/s’ or ‘interview/ee data’ henceforth), as well as via newspaper archives and relevant ILO (International Labour Organisation), trade union and government publications. We iteratively looked for archival material by searching for details of events discussed during the interviews, which in turn informed the questions posed in subsequent interviews. The data were then subjected to a thematic analysis. We argue that the government, after successive electoral victories in 2014 and 2019, has tried to camouflage its authoritarian policies and promote its neoliberal agenda by deflecting attention towards the need to attract foreign direct investment (FDI) and facilitate the ease of doing business. Aiding this process is an anti-Western decolonisation discourse, which is used as a rationale for replacing the existing labour laws with new Labour Codes. These new Labour Codes, passed by the Parliament without debate, provided a facade of tackling the perennial problem of union recognition and collective bargaining that has plagued the Indian industrial relations scenario (Noronha and D’Cruz, 2021). Their application and implementation are likely to weaken unions and make working conditions precarious. Besides this, rather than strengthening unions, the government has created fissures in the labour movement and has used the Bharatiya Mazdoor Sangh (BMS; i.e., the union affiliated with it) to manufacture a facade of democratic debate on the Labour Codes. Thus, the government, to further its neoliberal agenda, has used a combination of discourse, manipulation of democratic institutions like the Parliament and a strategy for disengaging and disempowering the unions that oppose reforms.

Before we detail the findings derived from the aforementioned interview data and archival and published materials, we review the extant international literature on authoritarian innovations and present the Indian industrial relations context as a backdrop.

Authoritarian innovations

Over the last decade, the rise of authoritarian governments in ostensibly democratic countries has generated a wide range of concepts to understand the unexpected global decline of democracy: competitive authoritarianism, democratic recession, democratic authoritarianism, democratic backsliding, democratic decoupling, constitutional retrogression, autocratisation, and executive aggrandisement (Bajpai and Kureshi, 2022; Bermeo, 2016; Caraway, 2021; Ding and Slater 2021; Mietzner, 2020). Democratically elected executives have been undermining institutions vital for protecting democratic rights such as freedom of association and of expression, while leaving competitive electoral institutions intact (Ding and Slater, 2021; Mietzner, 2020). This global decline of democracy across a wide range of political regime types is an incremental process through which long-term autocracies try to further consolidate power or established democracies slowly but consistently become less democratic (Caraway, 2021; Curato and Fossati, 2020; Mietzner, 2020).

Towards this end, autocratic governments deploy a range of ‘authoritarian innovations’ to politically entrench themselves (Curato & Fossati, 2020). Curato and Fossati (2020: 1010) describe authoritarian innovations as ‘novel governance practices designed to shrink spaces for meaningful public participation’. An innovation is novel if ‘it breaches existing norms or pushes the boundaries of acceptable conduct within a regime’ (Pepinsky, 2020: 1094). The novelty of authoritarian innovations lies not in regime type, or even particular tactics, but in the purpose for which those tactics are used. Many of these measures are democratic in appearance but, in fact, 'serve as a veneer to subvert democratic norms’ (Curato & Fossati, 2020: 1009). Under the guise of electoral democracy, authoritarian innovations often present themselves as initiatives aimed at upholding, not undermining, democratic rights (Mietzner, 2020: 2). For instance, participatory innovations that improve governance capability by emphasising transparency, accountability or responsiveness may in fact strengthen an authoritarian regime's governing capability (Almén, 2018). In reality, a wide range of regimes have used democratic institutions for symbolic purposes without substantively practising their principles (Bajpai and Kureshi, 2022; Ding and Slater, 2021) and can ‘take the tools and institutions of democracy and deploy them to subvert participation and accountability by immobilising civil society groups, controlling public access to information and embarking on legislative reform aimed at neutralising opposing groups’ (Ford et al., 2021: 1259). Thus, authoritarian innovations are a more sophisticated and deceptive form of control that may appear to embody democratic values and practices but are deeply despotic. The innovation lies in making repression look like business as usual within institutions (Ford et al., 2021).

Given that innovations aimed at shrinking spaces of voice and accountability are subtle and go under the radar by invoking the vocabularies of ‘rule of law’ or ‘will of the people’, analysing authoritarian innovations in democratic contexts involves going beyond the obvious (Curato and Fossati, 2020). Authoritarian innovations are less blunt and executive-heavy, and as a result, their visibility has been lower and more difficult to detect as they are typically packaged as acts in defence of democracy, not its erosion (Mietzner, 2020). For instance, with regard to labour governance, governments consciously use an ‘institutional pacification’ tactic of political and economic containment, as direct coercion could destabilise its legitimation (Ford et al., 2021). Moreover, authoritarian governments have used the very institutions and discourses that sparked democratic debate and mass participation to limit contestation and participation. Troll armies plague free online communities, various think tanks generate pro-regime press releases and uncritical analyses and parliaments overflow with incompetent sycophants (Pepinsky, 2020). More recently, cultural exceptionalism is used to curtail freedom of expression and promote anti-democratic and repressive political reforms that serve to entrench authoritarianism on an anti-Western plank. Authoritarian governments accuse Western liberal thought of creating the ills of a globalising world and hence the infringements of rights and freedom of expression are legitimised through oversimplified decolonial ideas (Enyedi, 2020; Lewis and Lall, 2023).

The context

The most significant labour laws in India were enacted during the colonial period between 1926 and 1947 (Anant et al., 2006). The Congress government, which took over the reins of the country after Independence, decided to continue with the interventionist legal framework of employment relations created by the British colonial government (Badigannavar, 2013; Noronha and Beale, 2011). The reasoning was that it would be risky for the state to withdraw in favour of collective bargaining, as the right to strike and lockout might unleash violent industrial conflict, while the need of the hour was uninterrupted industrial production and fulfilment of planned targets (Ramaswamy, 1984). Accordingly, the Industrial Disputes Act, 1947, retained the relevant sections of the Defence of India Rules and elaborated on the adjudication machinery of the Trade Disputes Act, 1929 (Anant et al., 2006; Noronha, 2001). The Industrial Disputes Act provided for state intervention as a third party between labour and management at every stage of their relationship (Ramaswamy, 1984), with the government deciding what is and what is not a dispute and whether and when to recommend a case for adjudication (Hill, 2009; Noronha and D’Cruz, 2019). This state intervention continued; in 1976, the government made it necessary for businesses employing more than 300 people to seek government permission before retrenching or laying off workers or closing an enterprise. In 1982, this number was brought down to include all enterprises employing 100 or more workers, which effectively politicised employment relations in India (Hill, 2009). Thus, a characteristic feature of the regulation of labour relations in India has been the overwhelming presence of the state (Gillan, 2016; Noronha and D’Cruz, 2019; Routh, 2016).

The presence of the state in the industrial relations regime resulted in the crippling of collective bargaining and the demobilisation of labour (Chibber, 2005). In fact, the institutional structures that facilitate efficient collective bargaining remained underdeveloped (Bhattacherjee, 2001). Collective bargaining in India remained restricted in scope and coverage. Only 30% of the organised workforce, or about 2% of the total workforce, participate in collective bargaining (Venkata Ratnam, 2003). Further, the Industrial Disputes Act, 1947, failed to provide procedures to determine the representative union that could function as a bargaining agent, and likewise, the Trade Union Act, 1926, failed to provide for union recognition, which allowed wages and working conditions to be effectively set by the state (Hill, 2009; Shyam Sundar, 2019). However, since the Indian Constitution gave states the power to make amendments to legislation to suit regional specificities, certain state laws (such as the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, and the Kerala Recognition of Trade Unions Act, 2010) did try to address the issue. Nonetheless, there remained a legal gap at the central level.

The proliferation of trade unions affiliated with political parties also complicated the Indian industrial relations landscape (Badigannavar, 2013; Beale and Noronha, 2014). This association with political parties originated before Independence, when the Communist Party gained control of the All-India Trade Union Congress (AITUC) in 1920. In the post-Independence period, trade unions affiliated with political parties burgeoned (Badigannavar, 2013; Beale and Noronha, 2014). National unions emerged that were linked to the Congress Party (Indian National Trade Union Congress [INTUC], in 1947), to the socialists (Hind Mazdoor Sabha [HMS], in 1948) and to Hindu nationalist ideology and politics (Bharatiya Mazdoor Sangh [BMS], in 1955). Today, there are 11 central trade unions (CTUs), with several other trade unions having less than 500,000 members and lacking presence in four states and four industries (Dhal, 2018; Gillan, 2016). Despite the mutual gains and political exchange that underpinned the association between trade unions and political parties, where trade unions sought to influence the state through the political parties, the latter have often dominated the former's interests (Beale and Noronha, 2014; Gillan and Lambert, 2013),

With a few exceptions, the CTUs have largely failed to integrate informal workers into their membership fold (Routh, 2017). The prevailing industrial relations system excludes the majority (92%) of the informal workforce, who primarily engage in highly exploitative, insecure and often dangerous work, receiving exceptionally low wages (Hill, 2009; Noronha et al., 2020). The reality is that the labour enforcement machinery has been ineffective because of poor enforcement, inadequate penalties and corruption of the inspectors (Noronha, 1996; Sood, 2020). Despite this, the fundamental employer and government policy objective in India has been to deregulate the formal sector of the economy (Hensman, 2010; Noronha and D’Cruz, 2021). Apart from a brief ‘Emergency’ period (1975–76) declared by Prime Minister Indira Gandhi, where there was a severe curtailment of fundamental rights and industrial relations, the governments that followed have gradually chipped away at labour rights. Indeed, before 2014, governments chose a ‘federalist’ strategy whereby confrontation with unions about labour law reform was isolated within states (Jenkins, 2004). So even without changing the existing central law, some state governments made labour markets more flexible (Sood et al., 2014). For instance, the BJP-led state governments of Rajasthan, Maharashtra, Haryana and Madhya Pradesh have allowed companies employing up to 300 workers to lay off workers or close down without prior approval from the government under the Industrial Dispute Act,1947 (Shyam Sundar, 2019). When the central government implements the new Industrial Relations Labour Code (Barnes, 2018; Gopalan, 2016), it will apply this change nationwide.

Based on our primary and secondary data, we now demonstrate how, to advance its agenda of sponsoring business, the government did not use direct and obvious repressive tactics as was the case during the 1976 Emergency, but rather, a combination of discourse that obscured precariousness, manipulation of democratic institutions like the Parliament and a strategy for disengaging and disempowering the unions that oppose reforms.

Labour reforms under the BJP-led government

When the BJP-led government under Prime Minister Narendra Modi assumed power in 2014, neoliberal policies, already in place in the country ¹ , gained further impetus. The government initiated a buzz around the need to improve the ease of doing business. The aim was to entice foreign capital by improving India's rating on the now discontinued World Bank's Ease of Doing Business Index. The Department for Promotion of Industry and Internal Trade (DPIIT) was tasked with the mission of reducing the time taken for starting a business, fast-tracking various permissions required by businesses, facilitating faster imports and exports, speeding up the resolution of commercial disputes and mandating joint inspection under 10 labour laws (GOI, 2020a). With regard to labour, the proposed amalgamation of 29 labour laws into four Labour Codes was also proclaimed to be a shining example of ‘Minimum Government, Maximum Governance’ that ensured the ‘ease of doing business’ (GOI, n/db). In short, this meant creating an environment characterised by entrepreneur-friendliness and a less intrusive government that granted more freedom to private economic actors (Ruparelia, 2015).

Prime Minister Modi repeatedly invoked anti-colonialism to give credence to the labour reforms. He stated that imprisoning employers for minor offences under the Factories Act, 1948, reflected a colonised slave mentality (Economic Times, 7 April 2022; The New Indian Express, 13 February 2022). Therefore, relics of colonialism, such as the corrupt ‘Inspector Raj’ that was purported to have terrorised and exploited industry, required dismantling. Under the Shramev Jayate (labour triumphs) scheme, the labour inspection system was reformed, with the explicitly stated aim of ending arbitrariness in the inspection mechanism in favour of transparency and accountability. The new Central Inspection System randomly and automatically assigns companies for inspection and submits inspection reports within 48 hours of the inspection being completed (GOI, n/da; GOI, 2014). This reformed system is radically different from the earlier system, under which it was alleged that units for inspection were selected locally, without any objective criteria, allowing inspectors to harass unit owners and even exploit them in cases of violation (NDTV, 16 October 2014). Furthermore, the reformed system transforms inspectors into inspectors-cum-facilitators, whose primary responsibility is not to prosecute law violations but to provide management with an opportunity to comply. Therefore, the new inspection system purports to empower enterprises by reducing the compliance, red tape and tyranny of the ‘Inspector Raj’ (GOI, n/db), while weakening the labour law enforcement regime (ILO, 2017), which we discuss in the next section.

The modifications in regulation were intended to stimulate job growth and safeguard employment (Sood, 2020). Further, Prime Minister Modi claimed that the labour reforms would improve the condition of workers and deployed a specific Hindu nationalist discourse to depict the changes as compassionate and as resulting in the ‘Shram Yogi’ (labourer) becoming a ‘Rashtra Yogi’ (nationalist) and hence a ‘Rashtra Nirmaata’ (nation-builder). He also argued that labour law reforms would empower workers and deliver the nation from the slavery of antiquated British era laws (The Hindu, 25 August 2022). Accordingly, the Wages Code was passed in August 2019, while the Industrial Relations (IR) Code, the Occupational Safety, Health and Working Conditions (OSH & WC) Code, and the Social Security Code were passed in September 2020, by the Indian Parliament without adequate dialogue, debate or consensus-building. It was stated that the new Labour Codes will ensure ‘Sabka Saath, Sabka Vikas and Sabka Vishwas’ (with everyone's growth and with everyone's faith), which in short, means ‘striving together for inclusive growth’ (GOI, 2020b), while simultaneously improving India's position in the World Bank's now discontinued Ease of Doing Business ranking by 79 positions to 63 during 2014–19 (GOI, 2020a).

The government argued that the current provisions of the Minimum Wages Act, 1948, apply only to workers in scheduled employments like mining, plantations and services, whereas the Wages Code, 2019, would provide legislative protection of minimum wages to all workers (GOI, 2023). Moreover, the introduction of the concept of floor wages in the Wages Code meant that the minimum wages decided by the central or state governments must be higher than the floor. In cases where the existing minimum wages fixed by the central or state governments are higher than the floor wage, they cannot reduce the minimum wages (PRS, 2019). In addition, the new Social Security Code envisions a centralised system in which social security contributions are pooled into a central fund and then disbursed to state governments, who will then provide benefits to eligible workers in the form of pensions, gratuity, medical coverage, maternity coverage and more (GOI, 2020b). The e-shram portal will integrate all welfare boards, creating a unified platform for workers’ social security (GOI, n/dc).

Obscuring precariousness

However, the motive behind this rhetoric was to advance employers’ interests while obscuring precariousness. Precariousness was created by (a) diluting regulation and (b) increasing informality. Soon after assuming power in 2014, the BJP government drafted the Small Factories (Regulation of Employment and Conditions of Services) Bill, which sought to exempt small factories that employ up to 40 workers from 14 labour laws, such as the Industrial Disputes Act, 1947, the Factories Act, 1948, and the Payment of Wages Act, 1936, while relaxing the provisions of the Employees' Provident Funds (EPF) Act, 1952. Further, the Bill also proposed to move workers in small factories from EPF to provident fund (PF) schemes approved by the Insurance Regulatory and Development Authority. Additionally, the Bill proposed to replace inspectors with ‘facilitators’ who would guide the establishment (Business Standard 2015, Narayanan, 2021, 2023). Despite the Bill being shelved, its ideas influenced the new Labour Codes and the Shramev Jayate scheme. The Shramev Jayate discourse aimed to obscure the government's pro-employer agenda through the language of popular empowerment. A union leader interviewed for this study observed:

The meaning of Shramev Jayate has always eluded me. Satyameva Jayate, for example, means ‘Truth will prevail’. What do you mean by Shramev Jayate? ‘Labour will prevail over what?’ It is a nice coinage, that is all I can say.

While critiquing the scheme, the ILO Committee on Application Standards (CAS) at its 107th session expressed concerns over the Shramev Jayate scheme. It noted the large-scale exclusion of workplaces and workers from the coverage of labour inspections because self-assessment by enterprises does not automatically trigger inspections. Labour inspectors no longer had the power to decide which workplaces to inspect since the computerised system (the Shram Suvidha Portal) randomly determined the enterprises to be inspected based on information gathered from risk assessments. The system also notified employers in advance about some categories of inspections, known as optional inspections. Inspectors could impose penalties only after issuing a written order and providing the employer with additional time to comply (ILO, 2017). Thus, these moves indicate attempts to change the functioning of the labour inspectorate in favour of employers. The initiative was bolstered by the passing of the Labour Codes which eliminate the sections allowing authorities to conduct investigations and determine the applicability of the provisions of PF and Employees' State Insurance (ESI). The Labour Codes have reduced the maximum imprisonment for obstructing an inspector from performing their duties as well as the penalty for unlawfully deducting the employer's contribution from the employee's wages. Additionally, the IR Code dilutes the legal safeguard for workers by replacing the previous industrial courts/tribunals with two-member labour tribunals (with one judicial member and one administrative member) (Sood, 2020). In summary, the government has decriminalised non-payment of wages, reduced penalties for non-compliance and institutionalised corporate self-certification of legal compliance. These developments result in ‘stripping any semblance of regulatory control in India's woefully lenient and ineffective system of labour law enforcement’ (Ferus-Comelo, 2022: 286).

In other words, the passing of the Labour Codes ensured that the long-term demands of business were met (Noronha and D’Cruz, 2021). Rather than empowering workers, the Labour Codes insidiously further the informalisation of workers and expose the working class to the vagaries of neoliberal policies. As noted by one central trade union leader interviewed for this study, the Labour Codes, rather than delivering workers from colonialism provided ‘full freedom to the corporate house to use the workers just like slaves’. For instance, the definition of ‘industry’ now excludes religious, charitable and defence establishments and any other establishments that the government chooses to notify. A union leader stated:

They have made definitional changes. For example, they have changed the definition of industry to exclude charitable, social or philanthropic services, thereby again putting an entire range of workers outside the law.

In fact, labour leaders we interviewed argue that the Labour Codes are legalising these violations that have become a norm in the country. For instance, the practice of fixed-term employment (FTE) was stealthily introduced in January 2018 by amending the Standing Orders Act, 1946, through the Finance Bill passed in the budget session. Initially limited to the apparel manufacturing sector, this practice has now expanded to encompass all industrial sectors. The Industrial Relations Code subtly tries to sell the idea of FTE by mandating that the employer cannot differentiate between FTE and permanent employees in terms of working hours, wages, allowances and other benefits, although this does not take away from the fact that FTE employees can be fired at short notice (Narayanan, 2023).

Furthermore, changes in threshold limits have enhanced precariousness rather than simplified matters. Simplification would mean doing away with threshold limits or reducing them; instead, the Labour Codes have maintained or increased these limits (Narayanan, 2021). For instance, the Industrial Relations Code, by raising the threshold of retrenchment, closure or lay-off from 100 to 300 workers, institutionalises precariousness (Narayanan, 2023). This increased threshold leaves 74% of industrial workers without any safeguards (Bhatia, 2021). Similarly, the Occupational Safety, Health and Working Conditions Code applies to those establishments employing 10 or more workers, while the Social Security Code maintains the thresholds for factories employing 10 (with power) and 20 (without power) workers and continues to treat employees within the same establishment differently, based on the wages earned. For instance, PF, pension and medical insurance benefits are mandatory only for employees earning above a certain threshold level of income (Sood, 2020). Thus, Narayanan (2021) argues that except for the Wages Code, the other three Labour Codes lack universal applicability because they maintain or increase threshold limits. They are a ‘poor cut and paste’ of the current legislation (Narayanan, 2021).

However, Mazumdar and Neetha (2020) dispute the universal applicability even in the case of the Wages Code. They argue that the definition of employees and workers in the Wages Code is tied to an understanding of the establishment, which is used to exclude domestic workers from the ambit of labour laws. Similarly, the Wages Code does not identify the factors to consider in determining the minimum wage and does not provide for circumstances under which a review may take place outside the five-year cycle (ITUC, n/d). In fact, unions argue that the introduction of floor wages is an attempt to deny workers the mandatory minimum wage. The proposed ‘starvation wages’ – a term used for the national floor for the minimum wage under the new Wages Code – are a meagre Rs. (Indian Rupees) 178 per day, despite the Satpathy Committee recommending a minimum wage of Rs. 375 per day in 2017 (GOI, 2019).

While ensuring precariousness, the government does not appear to take any responsibility for the social security of the unorganised workers. Corporate social responsibility (CSR) funds and beneficiary contributions, along with partial contributions from the central and state governments, will finance the welfare schemes under the Social Security Code. Given the nature of relations between the centre and state today, the financing of programmes that rely on collaboration between the two is a non-starter. The government's ability to exempt an establishment or its employees or a class of employees from any or all of the Social Security Code's provisions further exacerbates the situation (Sood, 2020). Thus, the current labour reforms indicate a continuation of a longer process that contributed to the informalisation of work and employment relations (Jose, 2022).

While these debates on informalisation raged, the authoritarian nature of the government became clearer with the onset of the COVID-19 pandemic. The most salient feature of the COVID-19 period was the government's tactics to aggressively push its corporate agenda by enacting the four Labour Codes and strengthening oppressive laws while subverting the Indian Constitution. The state governments of Uttar Pradesh, Madhya Pradesh, Haryana, Himachal Pradesh, Gujarat and Punjab issued ordinances or notified relaxations to labour laws through rules that diluted or suspended the major labour laws and extended the daily working hours from 8 hours to 12 hours (Ram, 2020). These measures facilitated workers’ exploitation by suspending their collective bargaining rights over disputes. During the pandemic, the state governments also took advantage of the existing travel and gathering restrictions, which prevented workers and trade unions from staging protests. Labour activists in our sample argued that the Indian working class was being pushed back to the state control and institutionalised repression that were characteristic of the era of British rule. In fact, the lack of a robust database at the national and state levels for initiating welfare schemes to aid migrant workers during COVID-19 (Observer Research Foundation, 2021) only reinforced the latter's precariousness. A union leader we interviewed stated:

The government implemented inhumane measures during the COVID-19 pandemic. One night, during a TV speech, Narendra Modi abruptly announced the closure of all operations. This was an anti-human decision. The government should, at least over the phone or in a letter, inform the trade unions that the situation is injurious to the nation. We are going to close and you should ask your workers to leave. There is no communication, no arrangement and no train. During the COVID-19 period, workers lost their employment, livelihood, family members and everything else.

Silencing trade unions and civil society organisations

Besides stealthily increasing precariousness, the government tried to impair the rights of workers to organise and bargain collectively under the IR Code. The Essential Defence Services Ordinance, 2021, served as a precursor to the Essential Defence Services Act (EDSA), 2021. The enactment of the EDSA took away the defence workers’ right to strike or protest. The Act debarred workers from expressing any kind of discord or protest, including through gate meetings or even shouting slogans on non-strike issues. Any infringement would result in dismissal without giving sufficient opportunity to defend oneself and in imposition of excessive penalties, thereby violating the workers’ right to freedom of association (ILO Convention 87). Further, the Act confers power on any police officer to arrest without warrant any person who is suspected to have committed any offence under the legislation. The Act, though effective for one year from the date it received the President's assent, prohibited all types of industrial action in defence production organisations (GOI, 2021) and continues to be in practice.

In accordance with the EDSA, the IR Code now defines a ‘strike’ as ‘concerted casual leave on a given day by 50% or more workers employed in an industry’. This implies that mass casual leave would not only amount to a strike, but would also be deemed illegal if no prior strike notice is given as per law. The Industrial Dispute Act, 1947, mandated prior notice of a strike only for public utility services, but the IR Code now mandates 14 days advance notice of a strike in all industries (Narayanan, 2023). This means that even in cases of blatant labour rights violations or in situations that require urgent collective action, workers must wait to exercise their rights. Moreover, as per the other provisions in the IR Code, the Labour Commissioner must admit the dispute into conciliation upon receiving notice of the strike and no strike can commence once it is admitted into conciliation. In effect, the new provisions prohibit strikes in all establishments while also kerbing collective bargaining powers. One CTU leader among our participants stated:

With the IR Code, you cannot go on strike that easily. It says if you go for a strike, 14 days notice must be given; okay…then you will have to go to the labour officer for compulsorily conciliation. Now, conciliation must be completed in a certain time, but that period is flexible…it can be extended. So, if the employer wishes, they can extend the conciliation process for an uncertain period. By this point, the issues necessitating a strike may have subsided or the workers may find it difficult to initiate a strike at the appropriate moment. There are 101 impediments to going on strike. And there is a considerable amount of scope to declare a strike illegal by the labour authority.

This dilution of the right to strike in the IR Code makes it exceedingly difficult or near impossible to exercise this right in practice and challenges the right to collectively bargain. The penalties for worker violations have also increased. For illegal strikes, the Code permits a heavy fine of between Rs. 1000 and Rs. 10,000 and/or imprisonment for up to one month as well as the deregistration of trade unions. In addition, the fine for those who incite or instigate participation in an illegal strike or knowingly spend money in furtherance of it, has been increased from a minimum of Rs. 10,000 to a maximum of Rs. 50,000. The provisions of FTE and individual settlements, as discussed above, will also impact collective bargaining. The definition of ‘settlement’ under the IR Code now includes individual settlements, which goes against the very concept of collective bargaining. According to Cox and Singhvi (2020), even permanent workers will have their service conditions fixed individually.

One of the most talked about features of the new IR Code is the recognition of unions (GOI, 2020b; Shyam Sundar, 2020). In contrast to the Trade Unions Act, 1926 (a central piece of legislation), which did not provide a framework for recognising negotiating with unions or councils under it, the IR Code is touted to fill the gap by providing for ‘negotiating unions’ and ‘negotiating councils’ (Noronha and D’Cruz, 2021). However, our participants argued that, as collective bargaining became nearly impossible, union recognition became meaningless. Besides this, the history of the recognition of trade unions in some states like Maharashtra under the Bombay Industrial Relations (BIR) Act, 1946, raised doubts about its efficacy (Ramaswamy, 1984). Some union leaders alleged that, in the past, a union once recognised under the BIR Act continued as the recognised union for years to come, despite losing workers’ support, but by gaining management and political party backing, as was the case in the Bombay textile mills. Therefore, management used union recognition as a pawn and political parties exploited it to their advantage. Participants in our study thus argued that the Labour Codes provide an opportunity for management to prop up unions which favour them, while stifling the voices of independent workers. A union leader from our sample said:

Therefore, the recognition process holds no value. We are unsure of how to implement this recognition process. Some say that they will recognise their own propped-up unions. That will surely happen. Look at the historical 1982 Bombay textile strike. The strike disrupted the entire textile industry, but that is another story. The argument posits that a union represented the entire working class, a representation the workers rejected.

In fact, unions argue that, by imposing unprecedented restrictions on trade unions, the IR Code attacks the very concept of freedom of association. The Registrar of Trade Unions holds vast and uncircumscribed powers, whose arbitrariness could lead to attacks on the freedom of association. For example, the IR Code permits the withdrawal or cancellation of a trade union's certificate of registration in contravention of its provisions. The All India Central Council of Trade Unions (AICCTU, 2021) argues that these contraventions, such as going on an illegal strike or failing to inform the Registrar of a simple change in union rules or membership fees, could now be grounds for the cancellation of the union's registration. Despite the requirement for prior notice and cancellation reasons, the union does not need to receive a hearing. The IR Code stipulates that a tribunal has the authority to disqualify certain individuals from selection as union office bearers. This vast power granted to the tribunal threatens the freedom of association. The provision of the Code could be weaponised against unions that challenge the state or corporate power (AICCTU, 2021; Union leaders' interviewee data).

Moreover, the IR Code has sanctified the system of unitary trade unions by explicitly stating that if a trade union has a membership of 51% or more, it will be recognised as the sole bargaining agent. Under these circumstances, the negotiation process excludes smaller unions. This will make the collective bargaining process unitary. The fear is that a single large trade union will have exclusive authority to negotiate in all tripartite discussions and will collaborate closely with the management (Narayanan, 2021; Sarkar, 2022). In addition, the sole bargaining agent aims to restrict union activity, which contradicts democratic principles that promote a diversity of parties and some degree of competition to guarantee authentic representation of interests (Narayanan, 2021).

The tightening of the Foreign Contribution Regulation Act (FCRA), 2010, a mandatory requirement for receiving foreign funds, is another example of stifling democratic voices. Some civil society organisations working to organise informal sector labour have lost their FCRA registration or have been left to await renewal of their FCRA registration for more than a year. In 2020, the government went on to prohibit the transfer of funds from one civil society organisation to another. This means smaller grassroots civil society organisations can no longer receive funding from larger civil society organisations and will find it difficult to continue their activities (The Wire, 2023). A participant from a labour civil society organisation stated:

The BJP government has been tightening the provisions in the FCRA. The government is very clear that they do not want to support rights-based work. Many rights-based organisations have had their (FCRA) licences cancelled. Earlier, renewal was easier; now, it has become exceedingly difficult.

Disengaging unions

In addition to deftly silencing unions and civil society organisations with legislative changes, the present government deliberately made defunct the institutions that have enabled consultation in the past. The last Indian Labour Conference (ILC; a tripartite body hailed by former Prime Minister Atal Bihari Vajpayee, also of the BJP, as the ‘Labour Parliament’ [GOI, 2002]) took place in 2015, when Prime Minister Narendra Modi assured workers that ‘changes in the labour laws will be made with the concurrence of the unions and the consultation process will continue’ (The Tribune, 2015). However, our interviewees indicate that the government has gone back on its promise. Since then, our participants report, no ILC meeting has taken place. Subsequently, the National Labour Conference of Labour Ministers and Labour Secretaries of States, organised by the Government of India at Tirupati on 25–26 August 2022, gave tripartism a pass and ignored the repeated demand of labour to hold the ILC (Vishwakarma Sanket, September 2022).

Unions argue that they were not consulted on the Labour Codes. Even the BMS urged the government to consider the objections of trade unions to the Labour Codes (Seth, 2019), instead of violating ILO Convention 144 which mandates consultation with workers and unions in framing and modifying labour policies (Narayanan, 2021). Trade unions alleged that, besides the government putting out the Labour Code drafts in the public domain without any prior consultation with them, there were differences between the draft posted in the public domain and that approved by the Cabinet and subsequently passed in the Parliament (People's Democracy, 2021).

Ignored by the government, the unions approached the Parliamentary Standing Committee on Labour with their apprehensions and objections about the Labour Codes. The Committee, which presented its report to the Ministry of Labour and Employment on 18 December 2017, recommended strengthening the inspection process and enforcement mechanism in line with the norms of the ILO. The Committee also suggested increasing the penalty levied for non-compliance from Rs. 50,000 to Rs. 10,00,000 (GOI, 2017). However, even the views of the Parliamentary Standing Committee were not fully considered in revising the laws. Therefore, unions considered the consultation to be a farce and boycotted the subsequent meetings on the Labour Codes so that the government could not later claim that those attending the meetings endorsed the government view. A participant described the tripartite consultation with the stakeholders as a mere ‘ritual’. Unionists interviewed for this study argued that the government did not take cognisance of their suggestions and made a mockery of the consultation process by calling meetings at short notice or that they were not given enough time to produce a response. For instance, in a pre-budget meeting held in November 2022, no speaker was allowed sufficient time to put forth their viewpoints; there was complete control by the Finance Minister's administration over who could be muted and who was allowed to speak. A CTU leader we interviewed, harking back to the suspension of democracy in India in the mid-1970s, called this situation an undeclared ‘emergency’:

See Emergency (in 1976) was at least declared. There is an emergency (now), and we are going to address it. However, the fact that we have not officially declared the emergency makes it even more serious. It is akin to both an undeclared war and a declared one. When a war is declared, everyone is aware and prepared for it. This is an undeclared war. An undeclared war is unpredictable and (one is) unaware of who is attacking whom. People who become divided experience severe confusion.

Not surprisingly, unlike in the case of the Small Factories Bill, which was successfully resisted by all the CTUs, including the BMS (see Surbhi, 2015; Narayanan, 2021), the government passed the four Labour Codes in the Parliament, flouting parliamentary norms and bypassing tripartite consultation.

In fact, there was an attempt to create a facade of consultation by first weaning away the BMS from the Co-ordination Committee of Central Trade Unions and enabling it to form the Confederation of Central Trade Unions (CONCENT). It is worth noting that, soon after the BJP-led government assumed power in May 2014, the BMS broke ranks with all other CTUs in August 2015, when it decided not to participate in a one-day nationwide strike of workers in September 2015. Consequently, relations deteriorated further, and all other trade unions stopped inviting the BMS to their conventions, meetings and conferences, leading to a breakdown of communication. Indeed, the government tried to create a facade of consultation with workers by enabling the BMS to form CONCENT. Aside from the BMS, CONCENT included the National Front of Indian Trade Unions (NFITU) and breakaway leaders from the Trade Unions Co-ordination Centre (TUCC) and from the INTUC (Nileena, 2019). This, according to the CTUs, was a desperate attempt to manufacture consent for the anti-worker policies of the government. Most recently, the CTUs have objected to being left out of consultations (only the BMS has been invited) to draft standards for the Occupational Safety, Health and Working Conditions Code, 2020, for beedi and cigar workers (Surabhi, 2024).

Besides lack of consultation, there are also issues of representation and partisanship. In 2015, the government's loss in the Delhi assembly election led to the abandonment of early attempts to reduce trade union representation in the EPFO's (Employees' Provident Fund Organisation) Central Board from 10 to 5 (Nanda, 2015). However, exclusion of trade unions persisted in other institutions. Under the Labour Code on Occupational Safety, Health and Working Conditions (OSH & WC Code), unions are not adequately represented in the Safety Board (Organiser, 2019; Vishwakarma Sanket, July 2019). The Social Security Code also reduces trade union representation to a mere formality in the apex Council which is filled with bureaucrats (Vishwakarma Sanket, July 2019). More recently, partisanship was visible when the government reconstituted the Central Board of Trustees (CBT) of the EPFO. Normally, the 10 seats for employees’ representatives on the board were filled based on the membership size of trade unions. However, the new board excludes trade union representatives from the INTUC, the AITUC and the AIUTUC, which had seats allocated in the previous body (Industriall, 2024). Thus, the government deliberately marginalised opposition-aligned unions while favouring unions that showed allegiance to the ruling party in a way that it could claim that formal ‘consultation’ took place and that international standards and norms were adhered to.

As a reward for its role, the BMS continues to be favoured. In 2022, the government unilaterally nominated the BMS for the 17th Asia and Pacific Regional Meeting (APRM) of the ILO in Singapore. The government did not even share the invite with other CTUs, despite their letters of request to the Union Minister of Labour and Employment to include them in the India delegation. The Credentials Committee of the ILO (2022a) stated that where several representative organisations exist, the government should have consulted them. More recently, the government unilaterally appointed the BMS as the Chair of the Labour-20 (L-20) Summit (part of the G-20/Group-20 Summit) in 2023. The International Trade Union Confederation (ITUC) has questioned this decision of the government as such a turn of events has never occurred at any of the previous G-20 Summits. Trade unions affiliated with either the ITUC or the Trade Union Advisory Committee (TUAC) of the Organisation for Economic Co-operation and Development (OECD) typically chair the L-20. In India, trade unions such as the INTUC, the HMS and the Self-Employed Women's Association (SEWA) are affiliated with the ITUC, which means they should have been selected to chair the L-20. However, as stated by Dave (2019) in the Vishwakarma Sanket, a leader of the BMS expressed caution about the union's incorporation:

Our blind trust in the government had made us forget how to agitate, organise rallies, dharnas, gate meetings, and the capacity to fight the conflicts. This should not happen… We believe that the government is ours; our path is easier as our own people are there in the government. We know one another. We should come out of this misbelief. (Dave, 2019)

The CTUs have lodged complaints with the ILO about inadequate labour inspections, COVID-19 enactments, the EDSA, the Labour Codes and the side-lining of tripartism which also includes representation at various conferences. Not surprisingly, the ILO (2023) Report of the Committee of Experts on the Application of Conventions and Recommendations on the ILO Standards criticised India's poor record on labour inspection. Further, the ILO expressed ‘deep concern’ over the labour law amendments and exemptions initiated by several Indian states during COVID-19 and appealed to Prime Minister Narendra Modi to intervene. Again, the ILO (2022b) Committee on Freedom of Association that examined the complaint against the Essential Defence Services Bill reiterated that the government should ensure that full and frank consultation with the social partners takes place on any proposed legislation affecting the latter's rights. Besides this, the trade unions, including the BMS, complained that the government violated ILO Convention 144 by not consulting them before drafting the four Labour Codes. Therefore, the CTUs collectively decided to boycott the consultations called to discuss the Code Rules. In fact, their demand is to put the implementation of the four Labour Codes on hold and to conduct fresh bipartite and tripartite consultations under the auspices of the ILC (Union leaders’ interviewee data).

However, the Labour Codes have not been implemented to date. Trade union leaders interviewed for this study stated that implementing the Labour Codes would lead to a political backlash (Shyam Sundar, 2019) and hence the government was holding back the implementation of the Labour Codes until the conclusion of the next general election scheduled for 2024. According to them, the government has probably learned from the experience of unilaterally deciding to tighten the PF withdrawal norms, which led to unrest and violent protests in Bengaluru (Zee, 2016). As one union leader explained:

I'm not sure if you recall the large-scale protest against the proposed changes to the Provident Fund law. The proposed modifications limited the employer's contribution to 58 years of age. This resulted in women pouring out on the streets. They blocked Bangalore for three whole days and burned down a police station. There was a lot of anger because the industry operates in such a way that people regard PF and gratuity as their savings. Every 3–4 years, they resign and then return to the same location a month later to withdraw their PF amount. Management keeps giving them that option so that they don't have to pay a gratuity, which is due to workers after they complete 5 years of continuous service.

Discussion and conclusion

On assuming office in 2014, India's government initiated an ambitious plan to facilitate the ease of doing business that aimed to make the country an attractive investment destination. Breaking from the strategies of previous governments to advance a labour reform agenda by supporting early adopters of reforms in the states, the government announced a new phase of sweeping reforms to core national laws on industrial relations (Gillan, 2016). However, declines in democratic practices often occur incrementally, by stealth and are obscured by the deployment of legitimising discourse or strategies (Ford et al., 2021). For instance, the government introduced the Small Factories Bill and the EDSA to test ideas that found their way into the new four Labour Codes. Obviously, to advance this neoliberal agenda, the government did not use direct and obvious repressive tactics as was the case during the 1976 Emergency, but rather, a combination of discourse, manipulation of democratic institutions like the Parliament and a strategy to disengage and disempower the unions that opposed labour reforms. The strategic deployment of oversimplified decolonial discourse was used to legitimise infringements of rights and freedom of expression (Lewis and Lall, 2023) and induce precarious work. Further, in the name of ‘quickness’ and ‘efficiency’ (Kaul, 2017), the Labour Codes were passed by the Parliament without any genuine dialogue, debate or consensus-building. Indeed, sliding items into Bills at the last minute, side-lining the Cabinet and the Parliament through executive orders and passing of ordinances (Joshi, 2021) amount to a concerted effort to ‘shrink spaces for meaningful public participation’ (Curato and Fossati, 2020:1010).

Moreover, the tools and institutions of democracy were deployed to subvert participation and accountability by immobilising civil society groups (Ford et al., 2021). In advancing its reform agenda, the present government ignored unions and refused to engage with them in a meaningful way. No consultations were held before drafting the Labour Codes and the tripartite mechanism – the ILC – was made obsolete. In fact, even alternative participatory mechanisms, such as the Parliamentary Standing Committee on Labour, that were available to unions, were ignored or made inconsequential by the government. Instead, the government provided a veneer of consultation by helping the BMS to form CONCENT to create a false impression of union inclusion. Overall, the government used a combination of innovative strategies to ostracise the unions (Beale and Noronha, 2014) and stifle their voices. Thus, authoritarian innovations extend beyond repression ‘to a more sophisticated and deceptive form of labour control that appears to embody democratic values and practices but is in fact deeply despotic’ (Ford et al., 2021:1259). In short, the dilution of labour standards is being institutionalised and labour is being systematically disempowered. The hurried passage of the Labour Codes through the Parliament and the content of the new legislation themselves appear to be working in tandem to silence labour (Sood, 2020).

In fact, there was an attempt to create a facade of legitimising the governance of unions by providing for union recognition under the IR Code while, at the same time, making the exercise of the right to strike extremely difficult. The Code also reduces the effectiveness of collective bargaining by legitimising individual bargaining through individual FTE contracts. The risk of registration cancellation is the most threatening provision for trade unions under the IR Code. This poses a danger to the very existence of unions and their effective functioning in the collective bargaining arena. Similarly, some civil society organisations working with informal sector labour have lost their FCRA registration or are still awaiting the renewal of their registration for more than a year. Thus, it is the broader government context, rather than deficiencies in the labour movement, that explains the current fortune of unions (Caraway, 2021).

Moreover, the COVID-19 pandemic provided another opportunity to push the boundaries of labour regulation. As in other countries around the world, political actors, including those in India, opportunistically used the COVID-19 pandemic, under the pretext of managing the crisis, to reinforce centralised control and advance authoritarian agendas (Stenberg et al., 2022). BJP-ruled state governments in Uttar Pradesh, Madhya Pradesh and Gujarat introduced labour law ordinances under the pretext of taking necessary measures to respond to the emerging social and economic crisis presented by the COVID-19 pandemic.

Nonetheless, these developments have not entirely quelled political activism. Workers continue putting up resistance to authoritarian neoliberalism, despite having to face highly adverse political, legal and practical circumstances (Beale and Noronha, 2014; Özkiziltan, 2019). Unions in India want the government to re-open the discussion on the Labour Codes through the tripartite ILC forum. To push their point, unions have boycotted meetings regarding framing Rules under the Labour Codes. They have also reached out to international fora such as the ILO to intervene and bring pressure on the government. Given that the government is sensitive to international pressure, it at least responded to the questions raised by the ILO and wants the BMS to affiliate with the ITUC.

As Gillan (2016:193) has suggested, whereas the labour policies of previous Indian governments often worked towards the ‘marginalisation of organised labour’, the labour reform agenda of the present government is ‘oriented towards excluding or sequestering union presence and influence in law and in practice with only a residual institutional role and legitimacy as worker representatives’. Thus, although neoliberalism and authoritarianism are not intrinsically tied to each other, there may be a strong elective affinity between the two (Biebricher, 2020). Authoritarian neoliberalism insulates policies and institutions from dissent, individualises labour laws and weakens collective bargaining processes and institutions (Clua-Losada and Ribera-Almandoz, 2017). However, as our analysis indicates, power and resistance are intertwined (Berlingieri and D’Cruz, 2021) and oppositional unions and civil society organisations will continue to work to resist and revert the authoritarian innovations in labour governance in India that seek to limit their democratic participation.