IMPORTANT POINT
In view of the shocking state of implementation of the BCOW Act and the Cess Act, directions given for improvement.

JUDGMENT

Madan B. Lokur, J.

1. Symbolic justice – there is nothing more to offer to several millions of construction workers in the unorganized sector – not social justice, not economic justice. The reason is quite simple. No State Government and no Union Territory Administration (UTA) seems willing to fully adhere to and abide by (or is perhaps even capable of fully adhering to and abiding by) two laws solemnly enacted by Parliament, namely, the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (the BOCW Act) and the Building and Other Construction Workers‘ Welfare Cess Act, 1996 (the Cess Act). Directions given by this Court from time to time to implement the two laws have been flouted with impunity. What is equally tragic is that multiple directions issued even by the Government of India under Section 60 of the BOCW Act have been disregarded by State Governments and UTAs - and this is candidly admitted in a statement made by the learned Additional Solicitor General in this Court and also by the Union of India on affidavit. Hopefully, the gravity of the situation in the constitutional and federal context, the human rights and social justice context will be realized by someone, somewhere and at some time.

2. We have been informed that under the Cess Act, more than Rs. 37,400 crores have been collected for the benefit of construction workers, but only about Rs. 9500 crores have been utilized ostensibly for their benefit. What is being done with the remaining about Rs. 28,000 crores? Why is it that construction workers across the country are being denied the benefit of this enormous amount? These are some questions that arise in this petition – are the answers blowing in the wind?

Brief background

3. The petitioner is said to be a non-registered Committee of registered trade unions concerned with the rights of workers in the unorganized sector including construction workers, especially in areas of safety, occupational health and welfare measures. The petitioner says that it is “appalled by the attitude and ignorance” of most State Governments and UTAs towards implementation of the BOCW Act. According to the petitioner, the non-implementation of the BOCW Act violates the provisions of Articles 15(3), 39(e) and (f) and also Articles 45 and 47 of the Constitution, which impose a primary responsibility on the State to ensure that all the needs of workers are met and that their basic rights are fully protected. The non-implementation also violates Article 21 of the Constitution, which provides for the right to live with dignity. It is averred that the BOCW Act and the Cess Act are based on an international convention, namely, the Safety and Health in Construction Convention (No. 167) adopted by the International Labour Organization in 1988 and its accompanying recommendation (No.175) which provide for a foundation of law on which safe and healthy working conditions are built.

4. Based on its experiences and studies carried out which indicate the absence of any effective system for the safe and healthy working conditions for construction workers, the petitioner preferred a writ petition in this Court under Article 32 of the Constitution in which several prayers have been made but essentially the prayer is that the BOCW Act and the Cess Act should be meaningfully implemented in letter and spirit.

The BOCW Act and the Cess Act

5. The BOCW Act and the Cess Act were both enacted in 1996. The Preamble to the BOCW Act states that it is an Act “to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare measures and for other matters connected therewith or incidental thereto.” The Preamble to the Cess Act states that it is an Act “to provide for the levy and collection of cess on the cost of construction