Covid 19 vis-a-vis Labour Laws in India

The labour policy in India has time and again catered to the situational needs of the country and there has been a bunch of efforts, made by the respective governments, to balance the wheels of 'strategically planned economic development” and the so called 'social justice.” Our country is reeling under some critical global pandemic named 'Covid 19” where we, as citizens, after three versions of national lockdowns, have literally started realizing the essence of 'survival”, 'necessities” and of course, 'subsistence.” In times like these, where on one hand we can see pan-India crisis, with lakhs of migrant labourers finding themselves at crossroads, where they are forced to choose between 'survival” and 'employment”, on the other hand, some recent slew of governmental decisions are directed towards recuperating the 'economical structure”.

Union Labour Minister Santosh Gangwar held a webinar with employers' bodies such as CII, FICCI and Assocham to discuss issues like restarting economic activities, job creation and measures to improve the situation of MSMEs to enable them to discharge their liabilities under labour laws.

As of now, multiple State Governments have raised distinct proposals seeking some effective relaxation/exemption in the enforcement and action of the existing Labour Laws and a lot of States have even issued notifications under the provisions of The Factories Act,1948 envisaging increase in the 'working hours per day' from 8 hours (present) to 12 hours. The Central Government is yet to follow the queue but 'whispers of change' have already started to haunt the real stakeholder in all of this i.e. 'Labourers.”

It started with Gujarat and Rajasthan followed by Punjab and Himachal Pradesh. It is noteworthy to mention that Rajasthan, Punjab and Himachal Pradesh tried to balance the cycle of 'economic development-cum-social justice” by providing that for every overtime, it has to be paid at double the rate of pay as prescribed in law, but Gujarat paid minimum heed to such balance theory and it expressly provided for extra payment at the normal rate. Later, Haryana followed the footprints of Gujarat. Uttar Pradesh passed the ordinance on May 8 2020 to suspend various labour laws in the state for a period of three years.

The Uttar Pradesh Cabinet, under the chairmanship of Chief Minister Yogi Adityanath, passed the 'Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020' relaxing all labour laws in the state, except three related to abolishment of bonded labour, ex gratia to workers in case of work-related diseases and disabilities, and timely wage payments. This would apply to all the existing industries and manufacturing units, as well as new ventures coming up. As per the Ordinance, all the labour legislations will remain suspended for three years. This ordinance will become law only once it receives Presidential assent.

The ordinance has excluded the following legislations:-

1. The Building and Other Construction Workers Act, 1996
2. Workmen Compensation Act, 1923
3. Bonded Labour System (Abolition) Act, 1976; and
4. Section 5 of the Payment of Wages Act, 1936 (the right to receive timely wages.
5. The provisions related to children and women in the labour legislations shall be in force.

But the real twist is in realizing the fact that such a blatant 'suspension of labour laws' will tantamount to hampering the crucial humanitarian principles of labour laws like :-

1. Laws related to settling industrial disputes, occupational safety, health and working conditions of workers.
2. Laws related to trade unions, contract workers, and migrant labourers.

Before analyzing the feasibility and vires of the said Ordinance, we must reflect on our Country's International stand and the commitments we hold. The International Labour Organization, after its formation, came up with guidelines so as to enable the labour force to work in a secured environment with humane working condition and effective remuneration.  India has been holding a non-elective seat in the General Body as one of the 10 countries of chief industrial importance.

India has ratified the following conventions and in terms of Article 253 of the Constitution, the Central Legislature can make laws and exercise sovereign power with respect to legislating in compliance of International treaty, convention and agreements on subjects contained in both List 1 and 2 of the VIIth Schedule of the Constitution. Instead of enumerating all the ratified conventions, we are going with just the ones relevant in current perspective:-

Now in the light of such International commitments, the impugned Ordinance impliedly violates the essence of said commitments to a great extent.

Before delving into a set of legitimate suspicions raised by various Labour Law experts, it would be wise to test all of this upon the Constitutional touchstone. The much celebrated fundamental rights enshrined under articles 14, 16, 19, 21, 23 and 24 of the Indian Constitution, when read in tandem with the directive principles mentioned under articles 39, 41, 42, 43, 43A, and 45, they envision some core outlook assuring social justice and the most feasible mechanism of becoming a 'welfare state”. Terms like 'occupational safety”, 'just and humane conditions at work”, 'right to health”, 'collective bargaining”, etc are on the verge of being compromised, if at all such a blatant suspension is brought into effect.

'It is absolutely shocking. This move of the Uttar Pradesh government turns the clock back by more than 100 years. It will lead to slave-like conditions for workers and it's unacceptable, in violation of all human and fundamental rights. This move should be legally challenged,” Labour Law Advocate Ramapriya Gopalakrishnan said.[1]

'The reported labour law reforms by the UP government of exempting industries from all labour laws save three, all of them otherwise poorly implemented by any government is beyond the scope of imagination and will make even the most vocal labour flexibility advocates to shame and even industries would not have imagined getting these 'holidays from labour laws',” XLRI Jamshedpur professor and labour economist K.R. Shyam Sundar said. He said that the move may prove counter-productive as 'good capital chases high labor standards.” 'The COVID-19 times are witnessing fall of labour standards like a pack of cards. The argument of occupying the market space vacated by China is taken far too seriously by this state,” he added.[2]

Radhika Kapoor of Indian Council for Research on International Economic Relations characterised this as 'creating an enabling environment for exploitation” for the sole reason that such a blatant and blanket suspension of labour laws in states like UP and MP (which are best known as hubs of manual labour) will cause a two-fold effect: firstly, it will strip the labour of its basic human rights and secondly it will lower down the margin of wages. For example, it may lead to enterprises cleverly firing its existing employees and re-hiring them on reduced wages. In that sense, from the perspective of the workers, the government has completely turned its stand from asking firms not to fire workers and pay full salaries at the start of the lockdown, to stripping workers of their bargaining power now. Moreover, far from pushing for a greater formalisation of the workforce, this move will in one go turn the existing formal workers into informal workers as they would not get any social security.[3]

Under the Constitution of India, Labour is a subject in the concurrent list where both the Central and State Governments are competent to enact legislations. The question at hand is 'Can a State Government effectively suspend Central Legislations?” Yes, there lies a constitutional machinery to carry it out because herein the 'entry” lies in the concurrent list. Proviso (c) appended to Article 213 of the Constitution reads as:

'An Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.”

And Article 254(2) further clears the legislative road for the State Government as it reads 'any Bill relating to a subject in the concurrent list, which may be repugnant to a Union law, needs the approval of the President for its enforcement.” That is, it needs to be approval by the Centre, which would advise the President to give his assent. This also applies to an ordinance due to Article 213 (1). This shows that, if we examine externally, we'd observe that somewhat the larger impediments in the way have been cleared but to explain it further we need to understand that most of the Central legislations carry provisions that allow 'delegation of powers” upon the respective state executives for the sake of proper execution and enforcement of the laws but if, by any chance, the respective state government is willing to act contrary to any of those centrally laid laws then it may grant exemptions/relaxations, but that too only with respect to those set of rules that have been bestowed upon in the form of delegation. But in the case of UP Government, it has deliberately tried to suspend the entire laws instead of bringing out amendments/alterations/exemptions amongst the so called 'delegated provisions” which clearly warrants a claim of repugnancy.

Where on one hand we are witnessing a slew of legislative initiatives on the part of Central Government seeking 'Universalization and Collective Codification” of various Central Labour Legislations, this federal move on the part of State Governments would surely run counter to all those efforts. For example, recently the Code of Wages, 2019 that constructively clubs four important legislation relating to wages, namely, The Equal Remuneration Act; The Payment of Wages Act; The Payment of Bonus Act; and the Minimum Wages Act, received Presidential assent but due to procedural laxity on the part of Centre, it hasn't notified the rules thereunder, as of now, and this recklessness provided the required leverage to the UP Government to bypass the Code and seek suspension of even legislations that form part of the Code of Wages, 2019.

Conclusion

It is more than obvious that this pandemic is still in its evolutionary stage and the entire world is still clueless as to the turns it will take and the sufferings it entails. Most of the economists have proposed that such critical times call for 'gradual growth” since there lies no 'magic wand theory” when it comes to economy and socialism. Both of these evolve with time, and time and again it has been proved via illustrations that 'instant steps” have yielded either no result or mere immediate relief with no prolonged effect.

Gujarat, Rajasthan, Punjab and Himachal Pradesh have stipulated a 'short-term” deviation from the labour policies, like for roughly two to three months, which is still a bit constitutional on the grounds of exigency and expediency but then we have UP and MP Government, ready to launch '3 years” and '1000 days” time window which in itself warrants a proper constitutional scrutiny because 'blanket moves” have always proved fatal to any and every 'growing economy”. For example, if we take the implementation of 'Aadhar project”, we'd observe how messy it was and how it was forced to wade through multiple legal impediments diluting almost a good chunk of its original draft. Bringing ancillary changes in certain areas, like 'working hours' is not ultra vires per se but instead of violating various International commitments and domestic labour policies, it would be a bit sensible move if we tactically carve out some feasible mode of recovery. For example, instead of increasing the working hours arbitrarily, we can go for division of shifts '8 hours” each. It would be legally tenable and logically neutral towards both employer and employees. 

At times, especially now, when the entire country is under a global pandemic, it doesn't matter how far a governmental move is legally sustainable but what really matters is that it must be optimum, expedient, just, fair and reasonable. We, as a country, have travelled a long road from enslaving the labourers to providing them with a 'place of dignity and worth” and we are still in the process of achieving the milestone named 'economically social justice.”

Almost every historical reference with respect to labour reforms portrays the resultant effect of resentment exhibited by the labour forces, be it the First World War wherein the 1918 strike of the workers engaged in textile mills of Bombay, or the 1921 of the workers engaged in the Assam Tea Plantation. Similar were the situations during the Second World War and thereafter wherein the bolstering incidents of depravity and working standards created economic problems.

Moreover in the recent past in the year 2014 the Legislative Assembly of Rajasthan amended four important labour laws wherein the move was entirely pro-employer aimed at achieving economic prosperity. Amendments were made to the central legislations with the assent of the president so as to be given precedence over the Central laws. Certain amendments were with reference to increasing the number of retrenched workers up to 300 from 100 so as to make it convenient for the employer. Another amendment was with reference to Trade Unions with minimum 30% of the workers from 15% that is res integra and quintessential for the representative rights of the labourer. Moreover, the contract labour was only sought to be applicable to the companies having more than 50 employees from 20, with the effect of making the labour force in the concerned places vulnerable.

Now when we look at the resultant effect of the aforesaid legislative move, we find that Rajasthan is showing second lowest growth rate of 3.49 per cent, just ahead of MP (2.06 per cent) and not to forget, MP Government is busy preparing a '1000 day suspension” plan in terms of labour laws. Long story short, nothing was achieved by rolling out such impractical ventures. Post World War I, a catena of countries passed legislation stringently limiting the working hours and in India, the existing Factories Act was amended in 1948 to limit the working day and mandate workers' safety. This curtailment of the working hours is not merely a matter of labour rights, it is also a matter of workers' physical and mental health, after all, if we lift the industrial veil, we'd find that labourers are not merely a 'tool” of production and profit, rather they are, in essence, human beings so forcing workers to push themselves in shifts that are one and a half times the existing ones, is unlikely to promote efficiency. But yes, in the light of prevalent travel restrictions and the need for social distancing, this sounds reasonable, only as long as these measures are for limited durations – for instance, three months.

It would have made more sense to grant immunities for shorter periods and extend them as necessary. It could be, and has been, argued that rigidities in labour regimes needed to be removed anyway. That is a matter to be established, on merits, by public discussions involving those involved or interested. The current crisis should not be treated as an opportunity for circumventing legitimate debate.

• [1] See https://thewire.in/labour/adityanath-govt-in-up-to-suspend-key-labour-laws-workers-rights-for-three-years (visited on 11th May,2020)

• [2] Ibid.

• [3] See https://indianexpress.com/article/explained/what-labour-law-changes-mean-coronavirus-6403611/ (visited on 11th May,2020)