The absence of legal interventions to address mental health issues in India calls for reform of labour laws
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This article is part of the essay series “World Mental Health Day 2024”
Overwork and burnout are often glorified in India, prompting distress amongst several salaried professionals. India is ranked as the second-most overworked country with 51 percent of employees exceeding 49 hours of weekly work as per International Labour Organisation (ILO) data. The absence of legal interventions at the prevention stage has led to scrutiny of India’s mental health laws at the reparation stage. This was recently highlighted by the public backlash over the demise of a chartered accountant over work stress concerns. The National Human Rights Commission has taken suo-moto cognisance of the matter, with Maharashtra’s Additional Labour Commissioner probing into labour law compliances of the employer. Legislative gaps persist concerning mental well-being, work stress, and excessive overtime hours amongst other concerns of the workforce.
Legislative gaps persist concerning mental well-being, work stress, and excessive overtime hours amongst other concerns of the workforce.
Presently, the Mental Healthcare Act, 2017 (2017 Act) serves as the only legislation dedicated to mental health, providing a rights-based framework for persons with mental illness. India is set to operationalise new labour codes in 2025 namely the Occupational Safety, Health & Working Conditions Code 2020 (OSH Code), Code on Social Security 2020 (SS Code), Code on Wages 2019 (Wages Code) and the Industrial Relations Code 2020 (IR Code) replacing and consolidating 29 central legislations. These codes primarily focus on physical safety and welfare, and it is unlikely that they will be an effective compliance tool to uplift mental health conditions at workplaces.
The 2017 Act gives effect to India’s international obligations under the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Mental illness under the Act is limited to disorders of thinking, perception, orientation or memory. The statute codifies the rights of persons diagnosed with mental illness and regulates healthcare establishments for their treatment. The 2017 Act is a special legislation, which would prevail over general legislation. While it safeguards the rights of persons with mental illness, it does not cast obligations on employers if they become aware of the employee’s mental health conditions. There is an absence of duties or compliances upon the employer to ensure adequate working conditions wherein an employee is subjected to minimal risks of developing mental illness while working.
The lack of enforceable norms targeting mental health is a global issue. The UNCRPD is the only treaty addressing mental illness as a disability and obliging parties to sanction rights for persons with mental illness through domestic legislation. The International Labour Organisation’s (ILO) Fundamental Conventions 155 and 187 address occupational safety and health, encompassing mental well-being. Besides, soft law norms such as the World Health Organisation’s (WHO) Guidelines on Mental Health at Work and the 2019 UNGA Political declaration of the high-level meeting on universal health can serve as guiding standards for national measures.
The UNCRPD is the only treaty addressing mental illness as a disability and obliging parties to sanction rights for persons with mental illness through domestic legislation.
Labour compliances make up an estimated 47 percent of the total yearly compliances for Indian businesses with 3048 filings. Yet, a focus on mental health compliance is missing. The OSH Code defines employees and establishments holistically to cover the formal sector. It mandates an employer to provide and maintain a safe working environment, without risk to employee’s health, as far as reasonably practicable. While conditions concerning safety and hygiene are enumerated, the act is silent on psychological conditions within a workspace. Such a legislative vacuum is unfavourable to white-collar employees. Firstly, quantifying claims would be difficult for employees if they escalate the matter beyond internal discussions. Secondly, voicing complaints would subject employees to the risk of suppression or termination. Thirdly, the concerns would find semblance in employment contracts putting an employee on an unequal footing to the employer. Fourthly, voicing concerns may lead to a breach of confidentiality or defamation claims against the employee.
The SS Code provides for compensation in the event of ‘employment injury’, which is limited to accidents, diseases or death arising during employment. Injury on account of mental health would be excluded in ordinary interpretations. A McKinsey report found that four in ten Indian employees experience symptoms of burnout, anxiety, distress or depression. Toxic workplace environments were experienced by 90 percent of the respondents, with 60 percent of employees desiring to leave the job. Termination of employees further occurs when they are unable to cope with the mental stress. The only remedy lies when the employee acquired mental illness during employment, as was the case in Ravinder Dhariwal v. Union of India. In furtherance to the provisions of the 2017 Act and the Rights of Persons with Disabilities Act, the Supreme Court shed light on employers’ duty to be cognisant of mental health disorders due to misconduct.
Toxic workplace environments were experienced by 90 percent of the respondents, with 60 percent of employees desiring to leave the job.
The Delhi High Court echoed concerns relating to overwork observing that toxic work culture is a societal issue and appropriate policies are needed. The OSH code mandates a cap of eight hours of work per day with the weekly and overtime norms to be notified by state governments. Stringent reforms to enforce working hours such as overtime pay may be considered within the OSH rules and state legislations.
Neglecting mental health can counteract an employer's productivity goals. The WHO estimates that US$ 1 trillion in terms of productivity is lost annually due to depression and anxiety. In India, poor mental well-being of employees cumulate costs estimated at US$ 14 billion annually towards employers according to the Deloitte Mental Health Survey 2022, where 39 percent of the covered employees could not take steps to voice their issues due to societal stigma.
Prioritising employee wellness can lead to better employee retention rates, saving on-boarding costs. Existing employer prerogatives such as annual health examinations may expand to include aspects of mental health. Existing policies like health insurance can be reworked to encompass mental health. However, most organisations lack a documented well-being plan with only one in 10 employees being freely accessible to Employee Assistance Programme services.
A National OSH Advisory Board will be established under the OSH Code to streamline recommendations to the central government concerning labour matters.
While the 2017 Act was a welcome enactment, appropriate for its effective implementation. The Central Mental Health Authority (CMHA) must increase its public presence and expedite the implementation of directives under the Act, as observed by the Standing Committee on Health and Family Welfare Report on Mental Health Care and its Management 2023 (Standing Committee Report). With litigations highlighting inaction, state governments must effectively implement the guidelines issued for setting up rehabilitation homes pursuant to the Apex Court Judgement in Gaurav Kumar Bansal. The Bombay High Court observed that State Mental Health Authorities became functional after a delay of four years through various court orders. In furtherance to the directions laid down in Harish Shetty judgement, the Maharashtra State Mental Authority must diligently carry out its responsibilities, including setting up halfway homes, filling up vacancies and undertaking data collection drives. A tracker was recommended by the Standing Committee Report to oversee the progress of mental health infrastructure including the establishment of SMHAs, and Mental Health Review Boards.
A National OSH Advisory Board will be established under the OSH Code to streamline recommendations to the central government concerning labour matters. It may design interventions targeted to provide standards or guidance to identify psychological risks such as discrimination and harassment and workplaces, which would help identify mental health patterns and best practices within the organisation. A systematic shift towards a liberal interpretation of occupational health to include mental health is required. Mental health can’t be reduced to a one-size-fits-all approach as opined by the Supreme Court. Ultimately, enhancing workforce welfare hinges on empowerment initiatives and tripartite dialogue as India revamps its employment law framework.
Dharmil Doshi is a Research Assistant at the Observer Research Foundation
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Dharmil Doshi was a Research Assistant at ORF’s Centre for New Economic Diplomacy, where his research spans international commercial law (encompassing treaties and conventions, foreign ...
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