Updated: Sep 16
Akshika Kriti (Jnr. Associate Editor)
“The saving of labour of the individual should be the object and honest humanitarian consideration, and not greed, the motive”- Mahatma Gandhi (Father of Nation, India)
The challenge of pandemic CoVID-19 has many facets including the plight of labours and the fallout of the world economy. In the series of actions in national lockdown, governments of several Indian states namely Uttar Pradesh, Maharashtra, Madhya Pradesh, Haryana, Uttarakhand, Himachal Pradesh, and Gujarat have announced the suspension of almost all labour laws some by invoking ordinances for the period of up to three years[i]. The suspension is justified by the council of ministers by stating the action as need of the time to give concession to industrial establishment and factories temporarily. It aims at boosting the business and industrial area which simultaneously disregarded at the stake of human values. The Centre for Monitoring of the Indian Economy has released the statistical data which indicates that nearly twenty-four percent of the Indian workforce is now out of the work. The time of crisis demands for equitable recovery. The abrogation of labour laws would implicitly abdicate the constitutional and human rights mandate of one section of society when they needed it the most.
Major Affected Area
Government of Uttar Pradesh and Madhya Pradesh has passed the ordinances while six Indian States announced the extension of working hours the major violation of basic human rights are observed in these areas of workers right. Starting from Interstate Migrant Workers Act 1979 that mandates the registration of migrant workers from home sate to the destination, inaction of State even at the ground level made the labours suffer most while national lockdown. Now the aftermaths implication of abrogation has worsened the condition-
The Trade Unions Act 1926, it provides protection of trade union in our country where employers lie at the driving position. It acts as the shield for them which they use to demand their rights. Abdication of this right also takes away immunity of office bearers from civil proceedings in certain conditions
The Industrial Disputes Act, the most important which protects workers from interference by employers and organization in several ways. The abrogation of this right may grant employers at their will to fire any employee arbitrarily lacking in prima facie security of a job to the workers.
The Indian laws provide security in terms of minimum wages, where less than the nominal amount leads to the situation of bondage. The suspension of Minimum wages Act 1948 in a jobless scenario where a part of the population agrees to work at any cost, despite this fact government by suspending law makes the situation for workers to bondage. In the case of Bandhua Mukti Morcha v. Union of India (AIR 1985 SC 802) it was held that if any person is serving as bondage it invokes Article 23(1) but the government itself is creating a situation where rights cannot be claimed.
The Factories Act 1948 which provides safety for workers with basic facilities of having portable water, electricity, and canteen, etc. Now no employer would be bound to fulfil such criteria and the rights of workers cannot be claimed. Basic right and democratic principles were kept at risk.
The manifestation of the proposed policy seems to be a neoliberal framework of Indian labour laws. Furthermore, the suspension policy needs to pass the constitutionality test for meeting far-reaching implications. The foremost significance also needed to comply with fundamental rights and mandatory essentials for which India is ratified to International Labour Organization (ILO) convention. The law related to the aforesaid is provided in the concurrent list under Schedule VII in the Constitution of India where any proposed change requires the assent of the President. Though it is very disproportionate that an ordinance repealing almost forty central acts without being discussed in the assembly.
Evaluation of suspension by the Constitution of India as a tool
The policy which must comply with constitutional fundamental to be implemented thus for evaluation of act constitution is used a necessary tool. The constitution of India provides innumerable rights to workers under Part III and Part IV about Fundamental Rights and Directive Principles of State Policy respectively. The suspension of labour laws violates many of them as foremost provided the right to form or join associations and unions guaranteed to citizens by Article 19 (1) (c) of Part III of the Indian Constitution is curbed. Justice Ghulam Hasan stated association also includes organizations and trade unions within its purview held in Kulkarni v. State of Bombay (AIR 1951 Bom 105). This right got violated with the suspension of labour laws even if Article 19 (4) provides for reasonable restriction can be imposed on the grounds of public order or morality or the sovereignty and integrity of India, there is a need to uphold the balance between rights of the workers and employers. Secondly, the landmark judgment of Maneka Gandhi v. Union of India (AIR 1978 597) provides the right to life enshrined in Article 21 having far-reaching implications from where rights of workers can’t be left apart. The life of workers is not of mere animal existence that waivers of rights in crisis could be justified, according to the definition of life in the case of Francis Coralie v. Union Territory of Delhi [(1981) 2 SCR 516] it is stated that life does not mean mere animal existence but with the dignified life. The labour laws which contributed to the social security of workers such as Minimum Wages Act 1948, Factories Act, 1948, and Industrial Disputes Act, 1947 have been suspended which led to violate their right to live a dignified life. Another facet of legal fraternity recognize right of access of justice as a fundamental right according to the case of in the case of Anita Kushwaha v. Pushap Sadan(AIR 2016 SC 3506) which cannot be denied in case of workers but by suspending Industrial Dispute Act, 1947 the grievance redressal mechanism is no more available. Thirdly, our constitution provides the right to protection from exploitation referring to the case of Sanjit Roy v. State of Rajasthan (AIR 1983 SC 328), it was held that on famine if the state provides less than minimum wages to the affected person violates Article 23. The same is done to avoid taking advantage of helplessness but in the suspension of laws, the government is itself opening the door to exploit the oppressed class by both private as well as public sector employees. The reform is violating the fundamental rights of labour by violating the above mention article fails to pass the constitutionality test[ii].
Article 38, 39, 41, and 42 provides several rights and securities to the workers. Part III of the Indian Constitution dealing with Directive Principles of State Policy is non- justiciable but ought to be protected by the state. Many labour laws were formulated included social security found in this principle. Even though it is provided in DPSP, the legislation has already made to secure these rights and its immediate denial amounts to the removal of a dignified life of humans which in turn violates the right to life.
Turning to other facets whether the state can suspend laws made by central by ordinance. According to Article 254 dealing with repugnancy provides a remedy in the conflict of central and state laws. However, State law may prevail if the assent of the President is provided. In the case of labour law suspension, the ordinance has not been asserted by the President. The action taken is, however, is for a temporary period and not for the invalidation of the said laws. Further in the case of the State of Rajasthan and others v. Union of India, (AIR 1977 SC 1361) it was held that after the declaration of financial emergency under Article 360(1) carries the power to issue the directions for reducing salaries to persons relating to the Union. Provision of abdication of all the rights however is not justified envisaged in the suspension of labour laws. In the case of D.S. Patel and Co. v. Gujarat State Textile Corporation Ltd.[ (1972) 0 GLR 33], it was held that suspension does not amount to destruction or annihilation as it suspends only its execution or enforcement. Thus it may be concluded that there is no need to check the constitutionality of the act of state government of passing an ordinance to suspend labour laws. This assumption is contrary as it is not in compliance with the beneficial construction of the legislation. In the case, Workmen of Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The management and Ors. (AIR 1973 SC 1227), it was held that construing the legislation, courts should adopt whatever described as a beneficial rule of construction. Thus labour laws intended to provide security to labourers and by suspending those laws there will be a major threat.
There are no circumstances under which the labour laws can be suspended. In Section, 86 of Factories act 1958 it is laid down the condition where state government can exempt but in favour of the public institution. It empowers in such conditions wherever necessary, such places related to the field of education, training research, or any other all provision except related to work and holidays. In the case of Jay Engineering Works Ltd. and Ors. v. State of West Bengal and Ors. (AIR 1968 Cal 407) it was held by B.C. Mitra., J. that the result of law suspension is a violation of fundamental rights and breach of statutory duty. Regardless of these no situations are given in the constitution or any other statute related to suspension in any exigencies unless emergency or president’s rule.
The act fails to pass the constitutionality test as it crosses the limit and is thus ultra vires due to violating fundamental rights.
Evaluation of the suspension by International mandate
India has ratified to six out of eight fundamental principles of ILO convention namely, forced labour convention (No. 29), the abolition of forced labour convention (No. 105), equal remuneration convention (No. 100), Discrimination (Employment Occupation) Convention (No.111), Minimum Age Convention (No. 138), the Worst form of Child Labour Convention (No.
182). The unilateral suspension of labour laws by various Indian states has been violating the international mandate. It is a deep concern of the international arena that states are nullifying the onus of responsibility in the time of the pandemic. The six Indian states where extension of working hours are announced violates ILO convention COO1 on hours of work which was ratified in 1921. The worker's right is being eroded by suspending laws as fundamentals of ILO conventions have also been violated. The basic principles of the organization that cannot be withered under pandemic as labours are not a commodity, freedom of expression and association are essential to upholding sustained progress and poverty anywhere establish a danger to sustained prosperity everywhere[iii]. Thus the action of Indian state transgressing their commitments to ILO declarations as well as disrespected the ILO ‘Declaration on Fundamental Principles and Rights at Work and its Follow –up’ which is the core convention adopted in Geneva 18 June 1998 by the International Labour Conference at its Eighty-sixth Session. It is the responsibility of the government to ensure the fundamental obligations, The pandemic resulting in lockdown reduced the productive work task along with their family members in both organized and unorganized sector. Especially the workers working in the small sectors suffered a lot they were left walking hundreds of miles through highways, roads, rail tracks or even forests to reach their home even having enacted legislation to regulate such services and welfare namely Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service Act 1979. Though after suspension revealing the responsibility the workers will trap into a situation where no legal remedy could reach. Apart from the ILO convention violation of principles of human is the contradiction of the UN agenda 2030 on sustainable development goals which is committed for India. Thus the suspension of labour laws during a pandemic is an act violating the fundamental principles of the Constitution of India and international mandates as well. The Ethical Trading initiative’s (ETI) base code which assures human rights as a leading alliance is also in violation.
Alternative Implementation and Conclusion
An alternative way to labour reform is needed to support the exigencies in the world pandemic which must not wither down the rights of labour. There is a need to strict for a policy that makes a balance between the rights of labour and interest of economy. The administrative policy must be made for the short term objective to deal with pandemic with the rigidity of regulation not make the system to be based on whims and fancies. The international labour organization has also issued the guidelines regarding pandemic must be made in compliance with the domestic regulation. To regain the true potential it is important to go with myriads of incentives rather than suspending laws that may create the monopolistic approach. The government must aim to regulate business in activities to correct market failures as well as protection to the fragile workers.
D. Eisenhower stated that any political party which abolishes social security, eliminate labour laws and farm programs, would not hear it again. It is the said due to the vicious effect on the section of society which denies justice abruptly. By waiver of all the labour laws, the government has mended the situation very perilous. The act fails to pass the constitutionality test as it crosses the limit and is thus ultra vires due to violating fundamental rights along with having no accent from the President. The said act also removed all the onus of responsibilities which comply should have been complying with the international mandate for which India is ratified. It is important to uplift the welfare to the affected section and rolling back the policy.