This article seeks to address the problem of inadequate or practically absent intern protection and remuneration laws in India. It provides a brief legislative analysis of several labour legislations which act against their very spirit by excluding the entire intern sector from their ambit. The article shall also analyse several judgements and orders that have failed to recognise the gravity of this issue.

The Problem
Effective training, adequate opportunities for training, conductive environment and a reasonable workload are some of the factors required to harness the full potential of internships. However, internships remain an unregulated sector and as a result, in most cases, interns are not legally entitled to minimum wages or modes of legal redressal that otherwise apply to permanent employees.

The lack of any framework for duration, work-hours or type of work also puts students in a very vulnerable position within the host organisation.[1] In addition, only 60% of students are aware of the government's internship schemes, stoking further concerns regarding their outreach and advertisement.

The emphasis on internships in the National Education Policy 2020 is a welcome change in this regard, particularly with the provision of internship opportunities with "local industry, businesses, artists, crafts persons, etc., as well as research internships"[2] for students at higher educational institutes. However, at present, there are no specific guidelines in place to facilitate or enable these internships.

Absence of Intern Protection Labour Legislations

No labour legislations apply to interns working in the service sector. The first International Labour Conference had adopted certain international labour conventions which pertained to working hours, unemployment, minimum age as well as night work for women and young people. However, these conventions would not apply to interns as there is no statutory provision for the same.

• Apprentices Act, 1961 is meant to provide practical training to technically qualified persons in various trades with the objective of promoting new skilled manpower extending to engineers and diploma holders but only applies to areas and industries as notified by Central government and does not allow 'apprentices' any legal recourse, bonuses or incentives during the training period. [Section 1(4)].
   
• The Industrial Employment (Standing Orders) Act, 1946 mentions apprentices but applies only to industrial establishments that employ 100 or more workers. This Act includes legal redressal related to removal from service etc., however all the laws that apply to permanent workers do not apply to apprentices.
   
• There is no clarity on whether The Factories Act, 1987 applies to interns.
   

Unpaid internships not illegal in India unlike the U.K., USA, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador - all have some form of statutory legislation in this regard, but before they did, most interns were compensated hence legal cases were not filed. Even The Minimum Wages Act, 1948 does not apply to interns as it mainly covers the unorganised primary sector.[3]

The Rule 25, BCI Rules[4] prescribes that the minimum period of internship for registered law students is 12 weeks for a 3-year Course Stream and 20 weeks for the integrated 5 years Course. The Delhi High Court on 10th January, 2020 agreed with the fact that these internships put undue pressure on students even when they don't have the ways and means to secure the same. The Division Bench of Justices Siddharth Mridul and Najmi Waziri through a Suo motto order assured that both the Bar Council of India as well as the institution where the student is enrolled will be responsible for providing the internship opportunities to all law students in order to meet the BCI guidelines.[5] However, there was no mention of any regulation of such internships.

The Compulsory Notification of Vacancies Act meant to enable fair recruitment and work opportunities states that "All establishments in the public sector and such establishments in private sector excluding agriculture, where ordinarily 25 or more persons are employed are required to notify all vacancies (other than those exempted) to the appropriate Employment Exchange."[6] However, recruiters fail to follow this rule even in case of jobs and most internships are acquired through requests or 'contacts'.

MD Imran Ahmad v. Union of India WP(C) 1120/2021- A Question of Intern's Fundamental Rights, Left Unanswered
It is with this regard a writ petition was filed by MD Imran Ahmad in the SC. The petition was seeking to count interns as trainees and consider them for legal protection under the Apprentices Act 1961. The SC though on 6 January dismissed the petition.[7]

The major concern of the petitioner was the fact that internship providers are making the interns work more than the fixed hours that a normal employee is supposed to work as the internship providers find lacuna the Labour/trainee laws that do not apply to interns. Interns are also being made to work on Sundays and holidays, this is not only detrimental to their various constitutionally guaranteed fundamental rights including Articles 21 and 23 but also detrimental to their physical and mental health. At many places, interns have replaced or are replacing the normal employees. Interns work like normal employees and in the end, they are not even being paid a stipend. This is a violation of Article 14 of the Constitution of India.

Imran Ahmad in his petition had also sought for considering domestic internships in parity with Fair Labour Standards Act, 1938 of USA if all interns could not be counted as trainees.

Further relief was also sought for directing the respondents to:

• Have a transparent and objective selection procedure for interns for both private and government sectors so that every person gets equal and fair chances of selection
• Provide accommodation and necessary support system to disabled persons during their internship and apply reservation as available to disabled persons in jobs and education in the internship scheme.
• Have a speedy grievance redressal mechanism for interns who feel that they were exploited or harassed in any way during their internship.
• Fix a cap on the number of interns individual organizations can have at the same time and the time period for which an intern can do an internship.
• To ensure that interns do not replace normal employees and nobody (including the government) be allowed to show job advertisements below the prescribed minimum age.^[8]

A Ray of Hope
Although the petition has been dismissed by the apex court, the petitioner along with the help of Indian Labour Trade Union (Reg.), Amritsar is conducting a survey which would help them file a review petition.[9]

A Critique of the MD Imran Order- Why must Unpaid Internships be made Unconstitutional?

Application of the Principle of 'Quantum Merit'
Quantum meruit is a Latin phrase and is related to the Indian Contract Act, 1872. It means "what one has earned" or "as much as he has earned". In simpler terms, it refers to the actual value of the services rendered or performed.

The theory supports equality of the parties and helps to ensure that if a person provides a service or a good, then he should receive the benefit of the contract and in corollary, if that person receives nothing, then that person can avail the remedy by filing a suit upon quantum meruit.[10] Therefore, this is considered as a common law principle of natural justice, which has been violated by this order as well as the non-recognition of intern's rights in India's labour legislations.

Recently, Delhi high court had fetched up municipal corporation for non-payment of salaries of their staffs. The court said, right to receive payment is a fundamental right enshrined under the Constitution of India.[11] According to Article 21 of the Indian constitution, every employee has right to get fair and just emoluments and hence if a reasonable salary Is not paid it would result to a clear violation of Article 21 of the Indian Constitution.[12]

Therefore, the author argues that being violative of the principles of natural justice (quantum meruit) and being violative of fundamental rights (Art. 14 and 21), the MD Imran order must be set side and intern protection labour laws must be introduced in India.

Conclusion & Suggestions
Unpaid internships can be harmful to both interns (the financial costs involved in gaining experience) and their employers as there is no accountability of the quality of work received and risk involved in sharing matters of confidentiality. While it is admittedly difficult to implement laws for interns under advocates or start-ups, there is no reason why they can't be implemented in big firms and companies.

The bigger concern lies in the fact that the internships are merely based on oral agreement which means even if there is breach, the intern will be left with no option to counter it. The best possible remedy available with the inter is to file a complaint against such employee in the Disciplinary Committee of the State Bar Association.[13]

Following the Examples set by Foreign Jurisdictions

United States of America
The United States Department of Labor (DOL) and many states use six criteria to determine whether internships in for-profit company operations can lawfully be unpaid:

1. the internship must be similar to training given in an educational institution;
2. regular paid workers are not displaced;
3. the intern works under close observation;
4. the employer derives no immediate advantage from intern activities;
5. there is no guaranty of employment upon internship completion; and
6. it is clear up front that there is no expectation of payment. The test is envisaged in all or nothing format i.e., all conditions must be satisfied for paying or not paying an intern. This test is based on the interpretation of "employee" by US Supreme Court (USSC) in Portland Terminal case.[14]

The other two tests employed by US courts are "economic realities" test (whether worker relies on employer to make economic benefit) and "primary beneficiary" test.[15]

The latter is a balancing test to determine who is the primary beneficiary of the work done by the intern. The test gives leeway to Courts to adjudicate each case on its merits. The test also allows courts to take cognisance of the "economic realities" and "totality of circumstances" before adjudicating the dispute.

A federal district court in New York Glatt v. Fox Searchlight Pictures Inc held unpaid interns as employees and thus entitled to benefits. The court applied the primary benefit test to weigh the circumstances and ruled in favour of the plaintiff.

Court's reasoning was broadly based on following observation that internship was not similar to training in an educational environment because the interns did not receive any formal training or education internship had only incidental benefit to the interns � resume value and references and Fox (respondent) was immediately benefitted from the unpaid work.

South Africa
In South Africa, the general definitions of employment appear broad enough to catch both paid and unpaid interns, at least when they are performing productive work. Germany and Romania, labour laws have been expressly extended to cover unpaid interns, even if they would not otherwise be classed as employees in the general sense of the term.[16]

Other Suggestions

• 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 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.

End-Notes:

1. Surat, Overdue: A Formal Internship Policy in India That Protects Its Students � The Wire Science Thewire.in (2020), https://science.thewire.in/education/india-internship-policy-student-workforce employability-exploitation-social damage. (last visited Mar 25, 2022)
2. Id.
3. Interns And Labour Laws, Lawchives (2018), https://thelawstudentsnetwork.wordpress.com/2018/12/25/interns-and-labour-laws/ (last visited Mar 25, 2022).
4. Rule 25, Bar Council of India Rules.
5. Protection Of Legal Interns, Unique Law (2021), https://www.uniquelaw.in/post/protection-of-legal-interns (last visited Mar 25, 2022).
6. Id.
7. Kshitij Kumar Ojha, Interns plead for a fair deal (2022), https://thepatriot.in/2022/01/13/interns-plead-for-a-fair-deal/ (last visited Mar 25, 2022).
8. Shruti Kakkar, Supreme Court Dismisses Plea Seeking To Count Interns As Trainees & Consider Them For Stipend, Livelaw.in (2022), https://www.livelaw.in/top-stories/supreme-court-interns-apprentices-act-trainees-internship-legal-protection-189066 (last visited Mar 25, 2022).
9. Kshitij Kumar Ojha, Interns plead for a fair deal (2022), https://thepatriot.in/2022/01/13/interns-plead-for-a-fair-deal/ (last visited Mar 25, 2022).
10. Subodh Asthana, Principle of Quantum Meruit under Indian Contract Act, iPleaders (2020), https://blog.ipleaders.in/quantum-meruit/ (last visited Mar 25, 2022).
11. IANS, Right to salary a fundamental right: Delhi HC National Herald (2021), https://www.nationalheraldindia.com/national/right-to-salary-a-fundamental-right-delhi-hc (last visited Mar 25, 2022).
12. Id.
13. Unique Law, PROTECTION OF LEGAL INTERNS Unique Law (2021), https://www.uniquelaw.in/post/protection-of-legal-interns (last visited Mar 25, 2022).
14. Shashank Pandey, The menace of unpaid legal internships: A statistical analysis Bar and Bench - Indian Legal news (2021), https://www.barandbench.com/apprentice-lawyer/unpaid-the-menace-of-unpaid-legal-internships-a-statistical-analysis-internship-menace (last visited Mar 25, 2022).
15. Id.
16. Id.