The Covid-19 pandemic has led to the economic downfall of the country. The state governments in trying to revive the economy, are easing the labour law in order to induce foreign direct investment. State governments of Madhya Pradesh, Uttar Pradesh and Gujarat have made significant changes in the labour laws. These government are of the opinion that these changes in the labour law are forward looking and will lead the country towards new labour regime that will provide impetus to investment. These changes have been criticised heavily by some experts as, they take away the rights of the labourers and no protection is provided to the labourers which creates an environment for exploitation. This paper gives an insight on how there is obscure violation of the fundamental rights and the governors have acted ultra vires of the ordinance making power guaranteed to them by the Constitution of India and there is sheer violation of the International standard which India as country has ratified.
India in the context of labour laws is still in a dilemma and even the legislators are trying to figure out how to ensure that the rights of the labourers are not violated and at the same time these labour laws do not result in a downfall of the industrial sector or reduce the productivity of this sector. There is a great deal of debate on labour law flexibility and labour law reforms in India. The outburst of coronavirus pandemic has forced many state governments in India to relax labour laws and have passed ordinances amending the labour laws in order to uplift and increase influx of investment in the industrial sector. These amendments have been severely criticised as, they violate the rights of the labourers guaranteed by the Indian Constitution and also contravene the International standards of labour law to which India is a signatory. In order to deeply introspect the rights of the labourers in India and the impact of these amendments, we need to have a look into the labour laws which are formulated by our legislators and even the ILO standards to which India is a member. This may lead us to a conclusion weather these amendments follow the latter and spirit of the Indian constitution or violate them and also weather the governments are willing to sacrifice human life at the cost of globalisation and development.
The Indian Constitution under the Seventh Schedule, Concurrent list, Entry No 241 deals with welfare of labour including conditions of work, provident fund, employer’s liability, workmen’s compensation, invalidity and old age pensions and maternity reliefs. Since, labour welfare laws reside under the concurrent list giving powers to both the central and state government to legislate on the matters of labour laws and the residual power residing with the central government, which in-turn has resulted in plethora of labour laws. Acts such as Workmen Compensation Act 1923, The Trade Union Act 1926, Payment of Wages Act 1936, Industrial Employment Act 1946, Minimum Wages Act 1948, Factories Act 1948, Maternity Benefits Act 1961, Sexual Harassment Of women at workplace act 2013 are some of the examples of the plethora of labour legislation present in India. There is no act which acts as a consolidating statue for labour legislation which in-turn leads to a lot of confusion and ambiguity. Even during the 40th ILC, the former prime minister of India Mr. Manmohan Singh quoted that-
“Some of the labour laws in-fact hurt the interest of the working-class by discouraging investment in labour intensive industries. They have encouraged expensive automation and capital- intensive technologies in a country where our real comparative advantage lies in skilled, yet affordable labour and the tyranny of the inspector raj must end and it must end if the Indian manufacturing is to prosper”.
These lines make things comprehensible, that India is in a dire state where labour laws which are meant for protection are in-turn hampering the interest of the labourers. There is indeed a requirement for consolidation of laws and thus, the legislation after seeing the chaos took the situation in their own hands and passed a consolidating statue i.e. “The Code on Wages, 2019” which was also known as the wage code, consolidating the provisions of four labour laws namely The Payment of Wages Act 1936, The Minimum Wages Act 1948, The Payment of Bonus Act 1965, The Equal Remuneration Act 1976. This was considered as a good move and the central government said that this move promotes the narrative of “one nation one law” and claimed that it would further take steps to consolidate labour laws and end the whole chaos about labour laws and protect the rights of the labourers. But, recently during this coronavirus pandemic everything turned on its head and the state governments instead formulated ordinances which took away the rights of the labours and made laws for the welfare of the capitalist disregarding the interest of the labourers.
ORDINACES PROMUGATED BY VARIOUS STATE GOVERNMENTS: AN OVERVIEW
The Covid-19 pandemic has led to the economic downfall of the country. The state governments in trying to revive the economy, are easing the labour law in order to attract investments. State governments of Madhya Pradesh, Uttar Pradesh and Gujarat have made significant changes in the labour laws. These government are of the opinion that these changes in the labour law are forward looking and will lead the country towards new labour regime that will provide impetus to investment. These changes have been criticised heavily by some experts as, they take away the rights of the labourers and no protection is provided to the labourers which creates an environment for exploitation.
Changes promulgated by the various state governments are as follows-
1. The Uttar Pradesh Government was the first to pass an ordinance repealing the labour laws. The government passed ‘Uttar Pradesh Temporary Exemption from certain Labour Laws Ordinance 2020’ which clearly exempted all the factories, industries from abiding by all the labour laws (for a period of three years) except the Building and Worker’s Act 1996, Workmen Compensation Act 1923, Bonded labour Act 1976 and section 5 of the Payment of Wages Act 1936 which deals with the right of the workers to receive wages timely.
2. The Madhya Pradesh Government notified that there were amendments which allowed the industries exemption from labour laws for a time period of 1000 days. The various acts were also amended by the state government such as The Industrial Disputes Act 1947, Factories Act 1948 (Making a change in the number of working hours making it twelve rather than eight), Contract Labour Act 1970, Building and Other Construction Workers Welfare Cess Act 1996, Motor Transport Workers Act 1961, The Madhya Pradesh Labour Laws and Miscellaneous Provision Act 2015.
3. The Rajasthan Government also made amendments such as raising the working hours from eight to twelve and also made amendments in the Industrial Disputes Act to increase the threshold for lay-offs and retrenchment to three-hundred from hundred.
4. The various state government such as the Maharashtra, Gujrat, Kerala, Punjab, Himachal Pradesh have also amended various provision of the labour laws in order to
improve the condition of the industrial sector and help revive the economic which is stagnant due to the corona virus pandemic.
These changes which are made by the state government using the concurrent powers are highly debatable because these ordinances passed and amendments made, require to be scrutinized from the point of view of the constitutional provisions.
ANALYSING THE ORDINANCE MAKING POWERS OF THE GOVERNOR
The Indian Constitution under Article 213 gives powers to the Governor to promulgate ordinances during recess of the legislature. These ordinances promulgated by the Governor in the state have the same effect and force as an act of the legislature. But the ordinances which are promulgated relating to labour laws are “ultra vires” of the powers granted to the governor’s as these ordinance’s passed are either for a period of 3 years or for thousands of days but as per Article 213(2)(a) the ordinance promulgated by the governor shall be laid before the legislative Assembly of the state for passing the ordinance and it shall cease to operate at the expiration of six weeks from the reassembly of the legislature. This provision demonstrates that the ordinances promulgated are not in solidarity with the Indian Constitution.
One of the most critical debate one can make is that ordinances promulgated cannot repeal the existing laws made by the legislature. Ordinances are passed in order to make new legislation which may be the need of the hour, but here it is pretty evident that the ordinances passed repeal and make amendments to the existing laws. Thus, as a whole we can conclusively argue that the governor has acted in an ultra vires way and thus the Judiciary should interfere and take necessary actions.
The Supreme Court in the decision of Krishan Kumar Singh & Anr v. State of Bihar clearly laid its stance by stating that when the Parliament or the legislators make laws, they are bound by some constitutional limitation which may be listed as under-
The laws should not be violative of the Fundamental Rights enshrined under Part III of the Indian Constitution.
The Distribution of legislative powers between the Union and the State should always be borne in mind.
Taking a stance on this the Supreme Court said the ordinance making power of the president under Article 123 and the power of the governor under Article 213 are subject to the same constitutional limitation by which the legislators are bound.
The researcher here wants to bring the attention of the readers to the point that above -mentioned ordinances promulgated by the state governments are violative of various fundamental rights which are enshrined in the Indian Constitution. Article 21 of the Indian Constitution which ensures no person shall be deprived of his life and liberty except according to the procedure established by law also has a facet where the Hon’ble Supreme Court has held that not receiving minimum wages leads to the infringement of Article 21 of the Indian Constitution. The amendments brought by the state government in the Wages Act take away the right of the labourers to receive at-least the minimum wages thus, infringing the fundamental right under Article 21 of the Indian constitution.
SHEER VIOLATION OF FUNDAMENTAL RIGHTS AND INTERNATIONAL REFORMS
It will be a bigger pandemic than “coronavirus” as rightly said by the president of the Bhartiya Mazdoor Sangh, that the changes and the ordinances passed in regards to the labour law by the state government will create a bigger pandemic. It is immoral to take away the rights of the labourers on the grounds of reviving the economy. This is the time to reinforce safety provisions not to dilute laws. The author here feels that these changes are against the rule of law. Labours are a matter of concurrent list and there are many laws enacted by the central government and the most recent one is the “The Code on Wages” 2019 and the state governments just cannot keep these laws aside and act according to its own will. Since the inception of the BJP government at the centre their main narrative was “one nation one law” but during this coronavirus pandemic, the state governments are creating their own laws (weather these changes in law are related to labour laws, industrial act or criminal matters) which in many senses appear to be arbitrary in nature.
The Preamble of the Indian constitution guarantees “equality of status and opportunity” but these changes in the labour laws not only take away the rights of the labourers but also deny them opportunities and certainly the changes compel labourers to act as puppet in the hand of the industrialists. The Directive principles of state policy also ensure that the government or the legislators formulate such rules and regulation that reduces the income gap between the rich and the poor, and under article 43 of the Indian constitution we have the concept of living wages. Putting, the living wages aside, these changes in laws will not even provide minimum wages to the workers. These labour laws certainly violate the fundamental rights of the workers, they are led towards the path of “forced labour” and article 23 of the Indian constitution prohibits “forced labour”. The Supreme court in PUDR v. Union of India held that the word “force” must be construed to include force arising from compulsion of economic circumstances which leaves no choice of alternatives to a person in wants and compels him to provide labours or service even though the remuneration received for it is less than minimum wage.
It is pretty evident due to the Covid-19 pandemic the workers are facing economic crisis and relaxation in labour laws will lead them to forced labour as there is no other alternative for them to work and serve these big firms and as these firms would be well aware of the relaxation in labour laws, they will exploit the workers to their full capacity. This also violates International Labour Organisation ‘Employment and Decent Work for peace and resilience Recommendation 2017’ which require states to ensure that marginalised groups freely choose their employment while after rebuilding after any disaster. These ordinances also violate the conventions of the international labour organisation such as the internationally accepted norm of eight hour working day- espoused by the core convention of the International labour organisation. The ILO convention 144 in regard to tripartism has also been violated. Tripartism is economic corporatism based on tripartite contracts between employers’ organisation, trade unions.
The above points discussed, by the author clearly points out that there is clear violation of the fundamental rights and international standards. As per Article 13 of the Indian Constitution, any law which infringes the fundamental rights are void and according to Article 51 of the Indian Constitution the state is bound to follow the International standards which India as a country has ratified and India has ratified six out of the eight core ILO convention and one of them being Forced Labour Convention. Thus, all these amendments are against the very spirit of constitutionalism.
The question is that the governments are willing to sacrifice human rights and even human lives (referring to the changes in the industrial rules) for economic growth. The governments need to understand that the mad rush towards economic development at the cost of human
rights and lives are unethical and immoral. There are other measures which could be adopted for reviving the economy, but making such amendments and passing ordinances which deprives a labourer from his fundamental right is totally unacceptable and no research in this world shows that stringent labour laws are the reason which leads to a downfall in the economic activities. Thus, there is a need for the central governments to re-think on this issue and the time has come when the central government has to take a strong stand on such kind of arbitrary laws.
These labour laws witness changes from time to time but the basic impulse of the changes is to secure “right to life, liberty and pursuit of happiness” and provide workers with a healthy work environment and laying emphasis on these norms the author feels that the ordinances promulgated are against the basic principles of the constitution and are ultra vires of the constitution.
The problems of labour law certainly call for a debate, as it is rightly said by B.R Ambedkar that “increase hours of work and reduce rates of wages” clearly points out the dire situation in a country, wherein the powers of the capitalist remain unchecked which in leads towards the path of violation of labour rights.
The legislators and the central government should make a note of the things, that easing the labour laws not only open’s pandora’s box for the labourers but, there is no research or a proven fact that, easing of labour laws and infringing the fundamental rights of the labourers, does pave a way for development. Thus, in no ways they can pave way for development at the cost of labour laws and using COVID-19 for making such drastic changes is against the very spirit of constitutionalism and as Article 13 of the Constitution of India any law (which is defined under Article 13(3) of the Constitution of India) which infringes the fundamental rights of the citizen guaranteed to them by Part III of the Constitution of India is void. Thus, on the concluding part the author would like to quote a from the CPM’s Sitaram Yechury that “far from protecting the fundamental right to life and liberty and dignity, today’s conditions are barbaric” this clearly demonstrates that the all the three organs of the government i.e. the legislation, executive and the judiciary should come up with a tactic sooner than expected and according to the author, the tactic is to legislate on the very subject of labour law and come up with a consolidated legislation and the executive and the judiciary to keep a check whether or not these legislations formulated is followed in its full letter and spirit.
Name- Anubhav Jaiswal
College – Christ (Deemed to be University), Bangalore
Year of Study- 2nd Year B.A LL. B (Hons.)