Transplantation of Labour Laws in Colonial Australia and India – Exploring the Divergences and Conjunctions in Language and Experience of Laws Regulating Factories and Unions Between 1850 and 1950

Research Project

The central theme of this inquiry is to excavate differences and commonalities in law and legal experience, specifically: the law regulating factories and unions in colonial Australia and India from 1850 to 1950. The story of these two colonies is quite distinct. While the British came to India as traders and eventually became colonizers, Australian settler-colonialism was precipitated by convictism and the gold rush. The question of regulating labour in modern times through legislation, having its origins in common law, crops up in both nations during colonization. Similar to the English experience, both colonies had initially worked on a master-servant law and eventually moved to laws regulating factories and other legislations. While Australian class factions included the pastoralists, industrialists, convicts, freed convicts and workers, the class equation in India, while intersecting with caste, was diverse – the English, the Indian industrialists and the working class. Post-freedom, India and Australia took their own approaches on how to regulate labour – through state-mandated socialism and arbitration respectively. There was, thus, a systematic transfer of legal structure to regulate labour. However, the language of the law, sharpened by local experiences and trade considerations, determined the ambit of these rights, duties and liabilities. While this unidirectional transplantation is visible, another kind of legal migration, perhaps transplantation, may also have operated subliminally. This became explicit in 1978 when Justice Iyer, in a judgement hailed as the landmark decision in Indian labour law, located the beginnings of the Indian Industrial Disputes Act 1947 in Australia. Quite interestingly, the legislative assembly of India, which was consecrated to frame laws for free India, was influenced significantly by the Australian experience. In this paraphernalia, the transplantation of English legal systems to regulate labour in colonies, specifically unions and factories, and the probable influences of the Australian experience on the Indian colony require further excavation. This thesis critically analyses the conditions made and unmade for the unidirectional transfer of laws to be compelling and further explores whether there were transplantations between colonial India and Australia on the question of regulating factories and unions during the period between 1850 and 1950.

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