ABSTRACT

India as a welfare state, has time and again enacted legislation to protect the rights of the vulnerable, ensure security, and provide a better future. In 1996 the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act commonly known as the BOCW Act was enacted with the same intent. BOCW protects the rights of the construction workers of India, enhances their working conditions, and provides them with benefits for a secure future. However, there have been several stumbling blocks to the BOCW Act’s implementation, especially in the Hindi belt states of Uttar Pradesh and Bihar. Uttar Pradesh and Bihar are states with substantial labor populations working in the building and construction industries, both within the state and as migrants in other states – but slow implementation and penury execution of the BOCW Act has always been a recurring challenge, in these regions. Contributing causes to these hurdles include laborers’ unawareness, ineffective bureaucracy, corruption, insufficient oversight, and difficulties with cess. In this paper, the authors examine the socioeconomic and political causes that contributed to the failures of BOCW emphasizing low literacy and awareness, bureaucratic neglect, and the nomadic character of the construction industry workers. Further, this paper suggests policy changes and a better implementation strategy for the effectiveness of BOCW in the Hindi belt states. The key objective is to provide pragmatic suggestions to policymakers, implementation agencies, and interested parties to rectify the inadequacies and enhance the efficiency of the BOCW Act. In its entirety, this paper aims to contribute to improving the present and future conditions of building and construction workers in Uttar Pradesh and Bihar.

Keywords: BOCW, Uttar Pradesh, Bihar, Labor, Construction, Unorganized Sector.

*Senior Consultant, Nyayvid Partners, Lucknow, Uttar Pradesh, India

*Undergraduate Law Student, Integral University, Lucknow, Uttar Pradesh, India

1) Tracing Labor Welfare in the Welfare State

Labor welfare has been a vital part of India’s socioeconomic legislation and policies, and the Constitution of India also acknowledges this in several articles. Notably, Article 39 of the Constitution asks the State to offer appropriate means of livelihood and human working circumstances, while Article 42 demands that the State maintain fair and human terms of employment.

India’s labor market is predominantly informal, with over 90% of the workforce engaged in the unorganized sector, including construction workers. The construction industry is a significant element of India’s economy, employing millions of people in dangerous circumstances with inadequate job security. To address this the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act (“BOCW Act” hereinafter) enacted in 1996, was enacted with the intent to meet the welfare requirements of construction workers.

The BOCW Act provides measures for social security, welfare payments, health, safety, and better working conditions, and it also demands the collection of a cess from building projects to support these benefits. Despite its ambitious intent, the BOCW Act has encountered inadequate implementation, notably in regions of the Hindi Belt states of Uttar Pradesh and Bihar from where construction workers comprise a substantial portion of the workforce across the country.

2) Uttar Pradesh and Bihar building the Nation, but at what Cost?

As of the 2011 Census of India, Uttar Pradesh has a population of over 200 million, while Bihar has over 100 million. Both states have labor-intensive economies, with agriculture and construction comprising substantial areas of employment. The construction business, in particular, is a key employer, given the fast urbanization and infrastructural development in the area. The construction industry employs a considerable fraction of the unorganized labor force from Uttar Pradesh and Bihar, especially from the rural and last-mile population. In Uttar Pradesh, there are an estimated 5 million workers in the construction business, while Bihar contributes roughly 2.5 to 3 million workers. These laborers are engaged in different tasks, including constructing residential and commercial constructions, roads, bridges, and other infrastructure projects.

The construction worker populations from Uttar Pradesh and Bihar are integral to India’s development and economic fabric. Both states, with high population densities and limited local industrial opportunities, contribute large numbers of workers to the construction sector, both within the states and through migration to other regions in India. Many of these workers, often unskilled or semi-skilled, migrate to urban centers or other states for employment. Despite their critical role, these workers frequently face challenges such as informal employment, low wages, lack of social security, and poor working conditions.

A majority population of construction workers are involved in temporary, contract-based labor, with little to no job security or access to formal employment benefits. Most workers in this industry lack any legal job documents, making it impossible for them to access any social security benefits typified by high levels of informality and vulnerability – which is one of the key objectives of the enactment of labor welfare legislation like the BOCW Act.

2.1. Socio-Economic Background Brings Labor to Construction Work

The construction worker population in Uttar Pradesh and Bihar largely originates from disadvantaged socio-economic backgrounds. Most workers belong to Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs), groups that have traditionally endured social and economic marginalization. Due to prevalent poverty in these populations, workers typically take up construction occupations to augment their family income, and they do so in risky settings without long-term job security or social rights, within the state and in other regions too. The literacy rate in Uttar Pradesh is about 67.68%, while in Bihar, it is 61.8%, according to the 2011 Census. These literacy rates are among the lowest in the nation and disproportionately impact the labor community, making it difficult for workers to interact with official procedures of registration and access to social systems of labor welfare legislation such as the BOCW Act.

2.2. Migrating from the Hindi Belt to Metropolitan Cities

One of the most defining elements of the labor population from Uttar Pradesh and Bihar is the high prevalence of labor migration, both within the states and beyond state boundaries. Migrant laborers from these states represent a large construction workforce in major metropolitan areas including Delhi, Mumbai, Bengaluru, Kolkata, and Hyderabad. Migration of labor from Uttar Pradesh and Bihar is forced by the absence of appropriate local job prospects and the seasonal nature of agricultural work. This movement is sometimes cyclical, with workers returning to their native villages during the agricultural season and migrating back to cities for construction work when farming operations slow down.

Migrant workers are among the most vulnerable sections of the labor market owing to their lack of formal employment contracts and difficulties in accessing social security programs in states where they are not permanent residents. They are commonly employed via contractors and sub-contractors, who make use of their mobility to circumvent compliance with labor rules. Additionally, the lack of interstate coordination mechanisms means that migrant workers lose their rights to welfare benefits when they move from one state to another, further marginalizing them from the advantages that the labor welfare legislations are designed to give. Research undertaken by the Indian Council of Social Science Research (ICSSR) on migration from Bihar and Uttar Pradesh showed that over 60% of families in rural regions had at least one member who had traveled for employment. This pattern of movement leads to the concentration of substantial labor populations from these two states in urban construction markets throughout India, although their access to social benefits remains widely fragmented.

2.3. Experiencing Below-par Working Conditions

The working conditions of construction workers from Uttar Pradesh and Bihar include a lack of safety precautions, excessive working hours, and inadequate access to health care. Many workers are employed on a daily wage basis, with no formal contracts, making it simpler for employers to avoid labor rules. The absence of sufficient health and safety procedures in construction sites has resulted in a high incidence of work-related injuries and deaths.

Female construction workers in these states suffer much tougher circumstances. Females are generally forced to low-paying positions such as transporting goods, and females seldom earn the same compensation as their male colleagues, even when doing equivalent activities. Gender-based pay discrepancies are persistent, notwithstanding the legal obligation for equal compensation under the Equal Remuneration Act. Moreover, female workers are less likely to get benefits under the labor welfare legislation, since they are typically ignored in the registration procedure under labor welfare legislation such as the BOCW Act.

2.5. Poor Access to Social Security and Labor Welfare

Despite the presence of many labor welfare legislations, including the BOCW Act, the ease of access to social security for construction workers from Uttar Pradesh and Bihar remains abysmally low. The fundamental reason for this is the low rate of worker registration with the state Building and Other Construction Workers Welfare Boards. As of 2019, government estimates revealed that just approximately 10% of the anticipated construction workers in Uttar Pradesh and Bihar had registered under the BOCW Act. This lack of registration hinders workers from enjoying the numerous benefits offered under these legislations, including life and disability protection, maternity benefits, pensions, and education help for their children. An additional issue contributing to the lack of access is the poor performance of the state welfare boards in the Hindi belt states. Despite the huge quantities of cess received from building projects, the delivery of benefits has been relatively restricted owing to administrative delays and lack of accountability. For instance, in Bihar, the Comptroller and Auditor General (“CAG” hereinafter) stated that just 20% of the collected cess had been used by the welfare board for 10 years, with the bulk of it either unspent or misappropriated.

3) Unpacking the Building and Other Construction Workers Act

The BOCW Act was enacted to address the welfare and safety of construction workers, a vulnerable population of India’s unorganized labor force. The BOCW Act intends to enhance working conditions, regulate safety standards, and give social security benefits to workers, as well as women, involved in building and construction operations. One of its important components is the registration of workers, which guarantees that they become eligible for social benefits like as life and disability insurance, maternity benefits, pensions, and educational support for their children. To support these social systems, the Act demands the collection of a cess ranging from 1% to 2% of the building project cost – from employers, contractors, or builders. The collected cess money is then administered by the State Welfare Boards to support the welfare programs for workers.

The execution of the BOCW Act is monitored by two bodies: the Central Advisory Committee (“CAC” hereinafter) and the State Building and Other Construction Workers Welfare Boards. The CAC functions at the national level, advising the government on policy concerns and regulations, while the state-level boards manage the registration of workers, collection of the cess, and dispensing of welfare payments. Despite the BOCW Act’s broad structure, its implementation has met considerable obstacles, especially in the states of Uttar Pradesh and Bihar, where a huge chunk of the construction labour remains unregistered and uninformed of the advantages available to them clubbed with administrative inefficiencies, corruption, and the migratory character of the construction workforce have further limited the BOCW Act’s efficacy in these areas.

3.1. Why the BOCW Act’s Implementation failed!

The BOCW Act’s implementation has experienced various challenges, ranging from poor registration of workers to improper usage of collected cess. Various studies, including those from the CAG, have revealed failures in cess collection and the inability of State Welfare Boards to give benefits to construction workers.

In Uttar Pradesh, the State Building and Other Construction Workers Welfare Board was created to enforce the provisions of the Act. However, a CAG investigation from 2021 found that out of an estimated 4 million construction workers, only roughly 0.5 million were registered with the welfare board. Furthermore, despite massive cess collection, the revenues were mostly unutilized. The CAG study noted systemic flaws, such as corruption, lack of understanding among workers, and bureaucratic inefficiencies, as important causes for the failure of the plan in the state.

Bihar’s implementation of the BOCW Act replicates the issues experienced in Uttar Pradesh. A considerable section of the construction workforce from Bihar is unregistered, and there have been incidents of mismanagement of cess. In Pratap Singh v. State of Bihar, the petitioner, a construction worker, challenged the refusal of the State Welfare Board to award benefits despite being registered. The Patna High Court reprimanded the State administration for its lethargic attitude and urged quick action to fix the errors in the payment of compensation.

4) Barriers to Effective Implementation of the BOCW Act

The failure to effectively implement the BOCW Act in Uttar Pradesh and Bihar is a bundle of issues ranging from low awareness, and bureaucratic inefficiencies to inadequate enforcement. A large portion of construction workers in these states remain unregistered under the BOCW Act due to poor outreach and a lack of information about the welfare schemes available. Additionally, corruption and delays in processing applications have hindered the distribution of benefits.

Lack of Awareness and Education: The majority of construction workers in Uttar Pradesh and Bihar are uninformed of the terms of the BOCW Act and their right to benefits. The lack of understanding is worsened by poor literacy levels among the workers, especially in rural regions. This has resulted in low registration rates and underutilization of available benefits.

Ineffective Bureaucracy and Corruption: The bureaucratic apparatus in Uttar Pradesh and Bihar entrusted with executing the BOCW Act is typically under-resourced and plagued by corruption, with claims of welfare cess being transferred or abused. The incompetence of State Welfare Boards in processing applications and disbursing payments has further worsened the situation.

Challenges with Cess Collection: Cess collection, which is important for paying the welfare services under the BOCW Act, has been uneven in Uttar Pradesh and Bihar. Many building projects do not comply with the cess rules, and enforcement organizations lack the competence to guarantee compliance. Even when cess is collected, delays in transferring cash to the welfare boards further hamper the execution of assistance programs.

Insufficient Oversight and Monitoring: Both Uttar Pradesh and Bihar have insufficient systems to supervise and monitor the execution of the BOCW Act. Without frequent audits and supervision, gaps in registration, cess collection, and payment of benefits go uncorrected. The absence of an impartial agency to supervise the implementation has led to a scenario where State Welfare Boards function with no accountability.

The nature of employment in the construction sector, coupled with insufficient political will and weak monitoring mechanisms, further exacerbates the situation, leaving millions of workers without social security and protections mandated by the BOCW Act, and that needs correction through policy and strategy.

5) The BOCW Act needs Policy and Strategy Shift

Improving the implementation of the BOCW Act in Uttar Pradesh and Bihar, a multi-pronged policy and strategy shift is essential. First, there must be a robust awareness campaign targeted at construction workers and employers, using local languages and community outreach to inform them of their rights and benefits under the Act. In Bihar State Construction Workers Union v. State of Bihar, the Court stressed the necessity for awareness programs to remind workers of their rights under the Act. The Court underlined that simply legislative action is inadequate without the supporting administrative measures to distribute information and encourage registration.

Simplifying the registration process through digital platforms and mobile applications, along with the establishment of local help centers, can ease access. Additionally, strong monitoring and accountability mechanisms need to be implemented to curb bureaucratic delays and corruption. Further, collaboration with local NGOs and labor unions to facilitate worker registration and enforce compliance can also enhance oversight. Lastly, regular audits and a dedicated task force at the state level could ensure efficient fund utilization and timely delivery of welfare benefits, ensuring that the BOCW Act reaches the intended beneficiaries.

5.1. Untangling Bureaucratic and Administrative Systems

Improving the ability of State Welfare Boards is vital for the proper execution of the BOCW Act. This involves providing enough resources, training workers, and minimizing bureaucratic red tape. To eliminate corruption, the recruiting procedure for welfare board officials should be made more open, and rigorous anti-corruption measures should be applied. Hon’ble Supreme Court, in Bandhua Mukti Morcha v. Union of India, laid down that the State has a responsibility to defend the rights of workers, especially those who are vulnerable. The case underlined the role of the State to guarantee that labor support measures are efficiently administered. This idea is significant in the context of the BOCW Act, where inefficient bureaucracy has failed to address the requirements of workers.

5.2. Stakeholders Collaboration

Collaboration between the government, labor unions, non-governmental organizations, and the private sector will enhance the execution of the BOCW Act. Non-governmental organizations plays a significant role in promoting awareness among workers, aiding them in the registration process, and campaigning for their rights. The private sector can help by guaranteeing compliance with cess collection and supporting worker welfare measures.

5.4. Digital India comes on Onboard

The use of technology may simplify the implementation procedure of the BOCW Act. Digital systems may be established to assist in the registration of workers, tracking cess collection, and payment of benefits. Additionally, biometric identification may be used to guarantee that benefits reach the appropriate beneficiaries and to avoid fraudulent claims. The Supreme Court in Common Cause v. Union of India examined concerns connected to cess collecting and money misappropriation and underlined that delays in cess collection were contributing to the collapse of assistance systems for construction workers – and technology has a possible solution to these problems.

6. Conclusion

The BOCW Act was enacted to safeguard the rights and welfare of construction workers in India but has suffered substantial implementation issues, notably in Uttar Pradesh and Bihar.

Judicial interventions in precedents like Pratap Singh v. State of Bihar, Bandhua Mukti Morcha v. Union of India, and Common Cause v. Union of India have underscored the State’s commitment to safeguard worker rights, noting that mere legality is insufficient without effective implementation and inspection. Despite these legal obligations, state bureaucracy and administrations in Uttar Pradesh and Bihar have failed to administer the BOCW Act properly. To tackle these challenges, a thorough reform strategy is essential with a collaborative approach with government, bureaucracy, civil society organizations, and the private sector with technological aid at the grassroots level.

The BOCW Act has the potential to substantially improve the lives of construction workers in India, realizing this promise requires a determined effort to overcome the socio-economic, political, and administrative restrictions that today hinder its implementation. By fixing these issues, the government can ensure that construction workers obtain the social security and welfare benefits they lawfully due, hence ensuring social justice and equity in India.