The Ministry of Human Resource Development, India has released the National Education Policy, 2020. Among other things, it provides that- for gathering hands-on experience of vocational subjects, school and under-graduate students shall undertake research assignments and internships to enhance their employability as part of their curriculum. Courses for engineering, law etc. already have prerequisite mandatory internship requirements.
While this is a welcome stratagem, the lacuna in law regarding regulation of internships needs addressing in order to avoid denial of human and labour rights, like- favourable working environment, fair remuneration, right against discrimination, reasonable working hours, etc, to interns.
Internships are crucial for building resume, professional connections and gaining experience, since employers desire individuals who possess workplace knowledge and skill-set. Recent graduates, vulnerable and desperate for employment are exploited for months sans any legal protection while un-paid/under-paid internships are on the verge of becoming the norm.
Consequently, socio-economic gaps are reinforced, since low-income students cannot afford the cost of living in metropolitan cities where host-organisations are principally based. They substantially lack financial resources and personal connections required to secure internships.
Ambiguity in internship regulations results in interns either performing the tasks of employees without pay, or performing menial jobs instead of gaining any real technical or learning experience.
Various Indian laws enshrine distinct definitions of 'employee', however, only a few expressly extend to interns. Under Minimum Wages Act an 'employee' is any person employed for hire or reward to do any work. The Employee's Compensation Act, which compensates for injuries or deaths of employees, doesn't cover interns. Under the Industrial Disputes Act also, 'employee' includes anyone working for hire or reward, including apprentices. In contrast to interns, apprentices' rights to leaves, stipend and refuse over-time working have been codified. Contrarily, only Prevention of Sexual Harassment at Workplaces Act, clearly defines an employee to include an irregular/ad-hoc appointee working with/without remuneration and includes a trainee/intern.
The prima-facie test for determination of employer-employee relationship is- if there vests absolute and effective control in the hirer, over appointment, payment of remuneration, dismissal, disciplinary action, execution and manner of work. The worker must be hired to perform work in the ordinary course of business. Further, part-time workmen have also been observed to be employees.
The Supreme Court recognizes that there exist a multitude of tests and the court's role is to balance all the relevant factors to yield a result, and in cases anent beneficial legislations, the balance should tilt towards declaring the relationship to be of service.
However, the question that whether these legislations and precedents can protect interns, who largely work in absence of any contract or remuneration, has not been addressed by either Judiciary or Legislature.
To avoid enabling of an unpaid internship boom, India needs to protect labour rights and create a sustainable labour market.
Defining 'interns' and their rights and liabilities is required. Inspiration from the American six-factors test to determine the 'primary beneficiary' or the South African presumption of employer-employee relationship irrespective of the nature of contract if direct control over manner and mode of work exists, can be drawn.
A metric test calculating the per hour cost of supervising and training an intern, as well as the per hour benefit derived, would help in ascertaining the primary beneficiary. Consequently, if the intern is at a greater advantage, he/she should not be remunerated and contrariwise.
An intern's tasks and responsibilities should vary from an employee's to ensure that the employer is not unjustly benefitted.
Specific regulations which set minimum standards for safe work places, compensation for accidents, protection from harassment, stipend, etc need to be enacted. To ensure that the disadvantaged students get equal opportunities to intern, allowances should be provided. Appropriate authorities should supervise internships, address complaints and ensure implementation of laws.
Measures like mandatory agreements between the host-organisation, educational institution and intern with clear assigning of terms are necessary to obligate favourable working conditions for interns.
To protect interns from getting precarious without any legal protection and to ensure that the potential benefits reach them, it is essential that the educational institutions, host-organisations and the government work hand in hand.
Views are personal only.
(Afzal Mohhamad is a B.A.LL.B.(H) candidate at National Law University, Lucknow, India. His research interests include transitional law, economic justice and climate change, Jahnvi Singh is a B.A.LL.B.(H) candidate at National Law University, Lucknow, India. Her research interests include regional protection of human rights, the rights of women, children, and older persons, among others)