Mainstreaming Human Rights in Businesses: Recommendations to the MCA NAP released

“There are fears and reservations across multiple quarters that the Ministry of Corporate Affairs’ National Action Plan on Business and Human Rights would also be a non-starter without consultation of those affected,” reads the latest policy draft put together by civil society organizations (CSOs) Partners-In-Change and Praxis, along with other human rights defenders. Titled ‘NAP from the Margins: Mainstreaming Human Rights in Business,’ the report attempts to document concerns of those who will be directly affected by the state policy.

A ‘Zero Draft’ of the NAP on Business and Human Rights (BHR) was first released by the Indian government (MCA) in December 2018 and highlighted the state-business nexus, collective bargaining, and even leveraged public procurement. Further, a notification was released in February 2020 calling for public recommendations for NAP BHR. PiC and Praxis, then, carried out consultations across the country with 600 participants from civil society organizations, small businesses, petty contractors, workers, and trade unions, and formally submitted a report to the government in March 2020. A revised version of the same was released on February 23rd, 2021 in an online seminar featuring eminent speakers from multiple areas, including gender, human rights, and labor rights.

Introducing the report, Corporate Responsibility Watch Convenor Tom Thomas, said, “The collective voice of workers is absent from the discourse on BHR, which, some may say, has led to a sanitized entry of human rights in corporate boardrooms.” He further added that the business and human rights agenda has to be everyone’s agenda.

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Primary recommendations of the report, through three separate sections, talk about evolving a plan to ensure human rights due diligence mechanisms in businesses, especially in the supply chains, having businesses recognize the influence of caste and patriarchy, and mandating the state to have a remedy system. It also reviews existing disclosure mechanisms, gaps in human rights jurisprudence, and recognizes the human rights of workers and communities. It also promotes diversity in the decision-making roles in corporates, especially from the lens of gender, caste, minorities, Adivasi, sexual orientation, and disability.

The report reads that 93 percent of the top 150 companies in India claim they have policies on human rights. In two separate tables, the report shows that while this is ‘theoretically’ true, the companies do not have commitments to many significant human rights and in the area of due diligence, they were found to be on a weak footing.

 

 

Table 1. Percentage of companies reporting in affirmative about the status of implementation mechanisms related to National Voluntary Guideline Principle 5 on Human Rights (2017-18)
S.No	Indicator	Percentage          of companies (n=150)
1	Existence of Policy	93
2	Formulation in consultation with Stakeholders	93
3	Conforms to international standards	91
4	Policy approved by Board	85
5	Systems to oversee the implementation	91
6	Link provided to view policy online	90
7	Communicated to all relevant stakeholders	91
8	In-house structure to implement the policy	91
9	Existence of grievance redressal system	91
10	Carried out independent evaluation of working of policy	71
Status of Corporate Responsibility in India, 2019; Praxis (2019).http://www.corporatewatch.in/images/Status_of_CR_Report_2019.pdf

 

 

Table 2: Policy commitment of companies vis-à-vis some key aspects of Human Rights; IRBI 2016-17 (top 100, n=99)
S.No	Human Rights aspects	Companies disclosing commitment in the Public domain
1	Existence of Anti-Sexual Harassment Policy	95
2	Identifying marginalised community to be targeted for CSR as part of policy	86
3	Respecting freedom of association	68
4	Commitment to inclusion of people with disability in recruitment as well as career advancement	56
5	Promoting diversity in Board	27
6	Extending employment policy to supply chain	22
7	Providing fair living wage	6
8	Providing social security benefits to contractual employees	6
9	Provision of similar or better living conditions for project affected people	5
10	Free, Prior and Informed Consent (FPIC) of communities through discussions for land	2

 Source: India Responsible Business Index, 2018

 “This is the 10th year anniversary of guiding principles of human rights in business, and we hope to see more responsibility from brands. During the COVID-19 pandemic, brands were canceling orders and putting factories at risk, and much of this affected the people in countries that did not provide them with social security,” said Mousami Sarangi, Gender Coordinator, Fairwear, adding that brands have put human rights at risk, leading to workers being more vulnerable.

“Due diligence of human rights should be looked at as an ongoing process, and not a mere tick-box in business agenda,” she added. 

The organizations also recommend monitoring the progress of the implementation of NAP in the next 4 years, which includes having an independent business ombudsman, along with having a key ministry to anchor the process. It also designates few roles to different ministries such as the Ministry of Home Affairs, the Ministry of External Affairs, and the National Human Rights Commission. It suggests the formation of multi-stakeholder platforms to ensure participation of regulators, investors, banks, businesses, MSMEs, trade unions, workers, citizens, and communities in the monitoring process and integrating it with national and global reporting system (Parliament and Parliamentary Committees). It also advocates to set up knowledge hubs, provide detailed financial memorandums, and live tracking of complaints on human rights violations.

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Dalits Rights Activist Juno Varghese pointed out that the NAP should focus on including members of the marginalized communities. “The business structure often includes caste-based violence, harassment of Dalit and Adivasis in the market, and subjects them to bonded labour. A majority of the child labour also stems from marginalized backgrounds, and there is a structural exclusion of Dalits due to their caste. DBA women, of course, are more vulnerable,” she added, whilst giving the example of the recent rape of a young girl in a Tamil Nadu based textile factory that supplies material to international brands such as H&M. The report also recommends having a special grievance redressal system of affirmative action for complaints from marginalized identities.

Adding that while women make up 48 percent of the countries population, they contribute very little to the workforce, Business and Human Rights Specialist (UNDP) Harpreet Kaur said, “Women’s voices and freedom to participate are undermined. The NAP should not be gender-neutral, but gender sensitive so that the participation of women can be encouraged. Gender, too, should not remain a tick-box exercise.”

Nusrat Khan, Business and Human Rights National Specialist (UNDP), concluded the release of the first draft by discussing the focus areas of the NAP. “NAP is a critical opportunity to create a vision board for India’s BHR agenda. It should identify the gaps in ensuring human rights, attribute ownership, and create a platform for review of implementation. It is an opportunity for state to set examples for high standards of businesses respecting human rights,” she said.