In a dimly lit crowded room in Rohini in north-west Delhi, nearly 30 construction workers are celebrating their colleague’s first pension. Bengali Babu has been whitewashing houses in Delhi for 40 years but received his first pension of Rs 3,000 on Monday, July 25. This was his right by law – under the Building and Other Construction Workers Welfare Cess Act, 1996 (BOCWWCA), but he had to fight for it for years.  It called for a celebration.

“We have been fighting for five years and today we have managed to accomplish our goal,” Bengali Babu said triumphantly. His joy, however, may be short lived. Ram Niwas, a labourer who receives a pension as well, mentions that the government is trying to cut it down. “We were discussing this in the meeting that they [the Delhi state government] want to reduce the pension. From Rs 3,000 they want to bring it down to Rs 1,000.”

Ram Niwas’s fears are not unfounded. Ever since the BOCWWCA was passed two decades ago, labourers have been involved in a perpetual tug of war with state governments, who have resisted giving them their due at every step. Ironically, the Act was passed to avoid such a situation, according to Subhash Bhatnagar. He is the coordinator of the National Campaign Committee for Construction Labour (NCC-CL) and was involved in the struggle to get BOCWWCA passed since the mid-1980s.

He lists out the two main differences between the organised and unorganised sector, which necessitated a formal framework for workers’ welfare.

“Firstly, there is no permanent team of management in the unorganised sector and secondly, there is no regular employee-employer relationship,” he explains. “Therefore, a substitute is needed to management which can implement the laws.”

The Building and Other Construction Workers Welfare Board was envisioned to be the substitute for the unorganised construction sector. Under the BOCWWCA, each state is required to constitute a welfare board having equal representation from the employees, employers and the state government. Anyone undertaking construction activity – public or private – costing more than Rs 10 lakh is supposed to contribute one per cent of the project cost to the board as cess and out of the funds collected, the board must provide welfare benefits to registered construction workers. Benefits include pensions for retired workers, maternity benefit for female workers, accident insurance, loans for buying equipment and homes, scholarships for children and others, depending on state-specific welfare schemes.

While the law looks good on paper, in practice, it has not been implemented. In Delhi, Ishwar Sharma, a carpenter and organiser for Nirmana, an NGO working for the rights of labourers in the unorganised sector,since the 1990s, feels that the board itself stands in the way of proper execution of the law.

“The biggest problem is that the board is not independent,” Sharma said. “The rules say that whoever is the labour minister of the current government, will be the chairman of the board. Since he belongs to a political party, he makes schemes to highlight his party.”

Sharma is referring to the Aam Aadmi Party (AAP) government’s recent decision to divert nearly Rs 1,000 crore from the coffers of the Delhi welfare board and use it to build hospitals and schools. The government’s defence, that the schools and hospitals would benefit construction workers too, doesn’t go down well with Bhatnagar. He points out that under law, any fund collected as a cess can be only used for the specific purpose it is levied for.

The problem is not limited to diversion of funds. In fact, the board falls short on nearly every parameter that can be used to judge its performance, beginning with the registration of workers for welfare schemes. “There are some 10 lakh construction workers in Delhi,” according to Sharma. “Registered workers are somewhere around 3 lakh.”

Sharma contends that of the total registered workers, only 50 per cent are ‘live’, which means that they renew their registration every year. Renewal is necessary if the workers wish to remain eligible for benefits, he explained.

“The [renewal] process is quite lengthy which means that the workers may get busy with their work and forget about it. Sometimes the workers are illiterate and they don’t know the dates. So they turn up a year or two late and get rejected,” Sharma said. He also feels that the process is intentionally convoluted so as to “clear the path for corruption”.

The collection of cess is another problematic area. “There is so much construction going on in Delhi, but the cess isn’t being collected,” Sharma said. “And there’s no way to check who has paid the cess and who hasn’t.” The BOCWWCA gives officials of the welfare board the authority to send a notice to any builder who fails to furnish the cess. But Sharma and his associates allege that this rarely happens, owing to an understaffed labour department, or otherwise, a lack of will.

According to government data submitted in the Supreme Court by the Union Labour Secretary (in response to a petition moved by NCC-CL) since its inception in 2002 till March 31, 2016, the Delhi welfare board has collected a total of Rs 1,536 crore as cess. According to estimates by NCC-CL, the Delhi board should have collected Rs 2,000 crore by now.

But perhaps the board’s biggest failing is its reluctance to spend the funds it has collected. Going by the government’s own numbers, the Delhi welfare board has spent a grand total of Rs 174.71 crore (a dismal 11.37 per cent of Rs 1,536 crore) on worker benefits throughout its existence. The Delhi situation generalises all over the country, as noted by a Supreme Court bench (which included Chief Justice of India TS Thakur) during a hearing of NCC-CL’s petition. Chastising the central and state governments, the bench said even though “all these amounts are lying in banks in states”, very little is being done “to provide succour to workers”. The total funds collected by all state welfare boards amounts to some Rs 26,000 crore while only Rs 5,600 crore has been spent (as of March 31, 2016).

When contacted by Newslaundry, an Additional Labour Commissioner of Delhirefused to comment on the unspent money. Sharma, on the other hand, harks back to the diversion of funds. “Instead of providing welfare and social security to construction workers, that money is being used for mohalla clinics, anganwadicentres etc. They’re doing what helps the party, not the workers.” Even the previous Congress government attempted to siphon funds from the welfare board, Sharma added.

Sharma believes that if the BOCWWCA is to be upheld, reform of the welfare board is an urgent need. “If the party minister is the chairman [of the board], then government officials like labour commissioner and labour secretary work according to the party’s needs. What we want is that the board should be independent and the labour representative should be the chairman.”

Without reform, Bengali Babu believes the law is of no use. Describing the fight for getting his pension, he said that despite doing everything right, nothing would happen. “I had all my papers but still my hands remained empty.”

The BOCWWCA has the potential to help millions of construction workers in India. But in 20 years, it has merely become another one of those laws that has so far failed in its efficacy.