Being in Good Company: Business and Human Rights Struggle Cannot be Apolitical
Labourers wearing protective masks work in Kolkata. (Reuters)
Exactly 100 years ago, India had its first trade union federation when the All India Trade Union Congress was formed in 1920. The power of trade unionism influenced a number of legislation in the subsequent seven decades. Nevertheless, the businesses were successful in mainstreaming a narrative of unions being bottlenecks for businesses as well as for the national economy, and things changed considerably in the past two decades.
Now, the national budgets talk rarely about workers; a number of official labour surveys stopped providing information about workers' membership in unions; and in 2020, we have seen the enacting of the labour codes that now scuttle the institution of collective bargaining itself. The Ease of Doing Business Index is no longer a set of indicators, but has evolved into an ideology by itself.
Ironically, during these times, we also saw the firming of the paradigm on business and human rights. In India, it aligned with the introduction of the National Voluntary Guidelines on business responsibility (NVG) launched in 2011, followed by the mandatory disclosure system introduced by the Securities Exchange Board of India (SEBI) in the form of Business Responsibility Reports (BRRs) in 2012; and now there is the National Guidelines on Responsible Business Conduct (NGRBC), 2019 and a new disclosure template, Business Responsibility and Sustainability Reporting (BRSR) template launched in 2020. Further, the government has embarked into evolving the National Action Plan on Business and Human Rights (NAP), which has been waiting a long-delayed unveiling for months now.
Over these happening years, what has also happened is that the term, human rights, is no longer a taboo among the businesses. According to an analysis of BRRs of top-150 companies by the Corporate Responsibility Watch(CRW), 93% companies claim that they have policies on human rights, with 71% even claiming that they regularly organise independent evaluation of the implementation of these policies. However, only 54% recognise the principle of collective bargaining. 21 among top 100 companies already have more than 50% of their workforce contractual; and only 6% extend the social security policies applicable to their permanent employees to contractual employees.
The corporate boards continue to be as non-diverse as ever. Among 83 board members of top 10 listed companies, 77 belonged to dominant caste categories (Brahmin, Kshatriya, Kayastha, Jain or Parsi); and none from the Dalit or Adivasi or Vimukti community. So, the narrative of ‘human rights’ is surging among the businesses, without really benefiting the workers or other marginalised. What is alarming, therefore, is this rapid de-politicisation of the term ‘human rights’!
Often we try to see ‘company as entity’ being socially responsible or irresponsible, but a glance at the business operations of different companies would reveal that almost every company has some of the following four categories of operations. The first category of business operations are inherently premised on the violations of human rights; for example, a number of companies subcontract their operations to petty contractors who often would not be able to even provide minimum wage to workers; or where the companies set up their factories circumventing environment and social audit mechanisms and clearances.
There are also a number of examples where business operations displace communities without prior consent; or impact the health and livelihood of the communities living around the operations. In these cases, human rights violations have become very ‘normal’ for almost every company.
The second category comprises those operations, which follow a “do no further harm” principle, that is, these operations would cause that much harm to persons as is the practice by the society or by other businesses. For example, if a society anyway has no dignity for menstruating women, such business operations would not make any attempt to prevent those socio-cultural norms from appearing in business workplace and systems.
Next, there is the third category of business operations, which follow a ‘do no harm’ principle. Here, operations do not cause any harm, although other companies or stakeholders in the society would be causing such harm. Such operations of businesses include practices like ensuring provident fund or health insurance even for contractual employees; or proactively eliminating all discriminatory practices within their systems to promote diversity within the organisation.
The ideal category is the fourth category, which is premised on ensuring and promoting human rights of all business stakeholders, individuals and communities irrespective of local practices. For example, the Lemon Tree Hotel’s inclusion programme employs more than 600 persons with multiple kinds of disabilities in core operations; or Tatas having affirmative action policies in employment, employability, entrepreneurship and education basis gender and caste; or Zomato providing entitlements of menstrual leave.
The challenge remains on how to ensure that such transformative experiences are seen among contractual workers, displaced communities and those whose health and livelihood are affected by company operations. Unfortunately many ‘harm’ by businesses have been normalised and seen as accepted practice; and the spaces for even dialogue on them are shrinking.
On the other side, the civil society groups involved in facilitating business and human rights discourse itself are also divided. There are three categories here. The first category includes those, which feel that the need is to showcase the business case for human rights, and they focus on popularising case studies where particular operations of companies respect human rights. The businesses themselves are keen to invest in these groups as these examples end up building a false narrative that businesses are overall doing incredible work on human rights.
The second category is of groups, which constantly visibilise business violations, but often with the premise that the businesses are not aware or sensitised; and that if corporates were provided appropriate knowledge and solutions they would comply with human rights. What is ignored is that it is not ignorance but often the knowledge, which makes businesses continue violating or ignoring human rights for they know how to deal with disclosure risks.
This category of civil society also disregards the nexus that businesses build with the state as well as with wider society. They seem to constantly convince themselves that everything that is happening is because of lack of awareness, sensitivity and creativity among businesses. The last category comprises human rights defenders, who constantly stand up against violations. The challenge for them is that there is no business and human rights jurisprudence to facilitate their action and link them to the current remedy machinery. Many demand accountability from the state, with less focus on making businesses responsible. Now, these three categories rarely talk to each other.
The UN Guiding Principles on Business and Human Rights (UNGP) with three pillars could well have become a tool to get these constituencies to talk to each other. But the UNGP and the way the principles are converted into manuals and modules often end up distracting the attention of the people from ground realities and the real contestation that is happening on the ground between the businesses and the communities. For example, even now it looks like businesses have nothing to do with the 'Black Lives Matter' or 'Dalit Lives Matter' or gender-based discrimination, as if these are happening in different planes. Ideally, a global instrument of this comprehensive nature should have helped alert businesses of their continued commanding role in preserving patriarchy, racism and casteism. But, instead, the attempt is to derail the instrument with a narrow definition of ‘human rights’ as well as of ‘business’.
Often, it is a struggle to explain that the incident like sugarcane plantation workers forced, 'voluntarily', to remove their uterus to work uninterruptedly in the field that do not have adequate toilet facilities or menstruation rest hours amount to violation of human rights in the production of sugar or all sugar products that companies market; or a Nestle not ‘removing’ the MSG; and its products actually having had a ‘no added MSG’ label citing that was the local practice is actually a violation of human rights of consumers from the lens of right to health as well as right to information. Or for example the media companies violating the rights to privacy of mental health patients or of the caregivers are not yet even perceived as a business and human rights issue.
It is difficult today to claim an apposite definition of business and human rights that is inclusive and all encompassing.
What is needed is, therefore, to evolve an ideological opposition to the Ease of Doing Business policy worldview. The UNGP is in the end a product that has evolved from the same ideology that crafted the Ease of Doing Business Index. There is an urgent need to build a platform that combines the values of equity and collectivisation to look at human rights violations from the lens of workers and communities. The ideology that nurtured trade unionism is currently not informing this mandate of the business and human rights.
If the police firing that killed 14 protestors against expansion of a copper smelter plant run by Sterlite Corporation in Thoothukudi town is an indication, there is clearly a nexus between business and the state that needs to be acknowledged and challenged. In some cases, it becomes visible; in others it remains invisible. The need is to evolve an ideological lens to comprehensively understand the crime and the criminals. A quote from Marx, here, will be self- explanatory:
“A philosopher produces ideas, a poet poems, a clergyman sermons, a professor compendia and so on. A criminal produces crimes. If we look a little closer at the connection between this latter branch of production and society as a whole, we shall rid ourselves of many prejudices. The criminal produces not only crimes but also criminal law, and with this also the professor who gives lectures on criminal law and in addition to this the inevitable compendium in which this same professor throws his lectures onto the general market as ‘commodities’...The criminal moreover produces the whole of the police and of criminal justice, constables, judges, hangmen, juries, etc.”
Isn’t the urgent need, today, to rescue UNGP from becoming a commodity of the Ease of Doing Business index ideology? The business and human rights require a powerful ideology, similar to the one that epitomised trade unionism for decades.
Disclaimer: The author is currently Director, Partners in Change, New Delhi, and Honorary Fellow, Durham University, UK. Views expressed are personal.